Jones v. Phillips Petroleum Co.
| Decision Date | 05 March 1945 |
| Docket Number | 20511 |
| Citation | 186 S.W.2d 868 |
| Parties | JONES v. PHILLIPS PETROLEUM CO |
| Court | Kansas Court of Appeals |
H. H Booth, of Kansas City, for appellant.
E. E Thompson, Alfred H. Osborne, and Thompson & Osborne, all of Kansas City, for respondent.
This is an action for the malicious prosecution of a garnishment proceeding. There was a verdict and judgment in favor of plaintiff for compensatory damages in the sum of $ 750, and in a similar amount for punitive damages. Plaintiff involuntarily remitted $ 250 of the compensatory damages. Defendant has appealed.
The suit is brought by reason of a garnishment of the salary of plaintiff, Clarence L. Jones. The writ was issued upon a judgment rendered in defendant's favor and against another person than plaintiff but of the same name. In other words, the suit involves a case of mistaken identity.
The facts show that on September 26, 1941, defendant obtained a judgment for $ 49 against one Clarence L. Jones, (hereinafter called debtor Jones to distinguish him from plaintiff Jones) before a Justice of the Peace holding court in Kansas City. The statement filed with the Justice, upon which the judgment was rendered, recited that the defendant therein was indebted to the plaintiff therein (defendant herein) for petroleum products sold and delivered to debtor Jones. The statement showed the address of debtor Jones to be 2517 Benton Boulevard, Kansas City. Debtor Jones was served with summons failed to appear and judgment was rendered against him by default. Defendant read in evidence, in the present case, a stipulation between the parties, in which it was agreed that Mr. Yancey, the credit manager of the defendant herein, if present, would testify that in August 1940, he received, by telephone, an application for a credit card from one Clarence L. Jones, whose then indicated address was Route 2, Kansas City; that he investigated as to the applicant's employment; that he issued the credit card and that an indebtedness of $ 49.02 had been incurred thereon; that he had passed the account to Mr. Searing, an attorney in Kansas City, for collection, and authorized the latter to file suit that he had no knowledge of the progress of the account after he turned it over to Mr. Searing, or the garnishment in question, until the filing of this malicious prosecution suit. There is no evidence tending to show the nature of debtor Jone's employment or where he was employed at the time the credit card was issued.
Mr. Searing, a witness for defendant, testified that when Mr. Yancey turned the account over to him, he gave the address of debtor Jones as 2517 Benton Boulevard.
As before stated, the judgment against debtor Jones was obtained on September 26, 1941. The garnishment complained of was caused to be issued by the defendant herein, upon that judgment, on October 21, 1941, by summons directed to and served upon Q. J. Bernard, doing business as Barney Bernard Company. Plaintiff was at that time employed by the garnishee, Bernard, as foreman of the latter's automobile repair shop (Bernard being in the automobile business.) Although bearing the same name, plaintiff was not, in fact, the same person as debtor Jones, and was not indebted to the defendant herein.
The telephone directory for Greater Kansas City, in circulation from December 1940 to June 1941, listed a telephone in the name of Clarence L. Jones, address Smith Road, which was a rural route. No other Clarence L. Jones was listed in that directory. In the telephone directory in circulation from June 1941 to December 1941, a telephone was listed in the name of Clarence L. Jones, address 2517 Benton Boulevard. No other Clarence L. Jones was listed in that directory. The Jones who lived at these addresses was the same person, debtor Jones.
Plaintiff had lived in Kansas City several years, at various addresses, but he had never lived on Smith Road or at 2517 Benton Boulevard, and his name never had been listed in the Kansas City telephone directory. At the time of the garnishment he and his wife were living at 34th & Wyandotte Streets.
Mr. Searing testified that after he received the account from defendant herein, he wrote several letters to Clarence L. Jones at 2517 Benton Boulevard and endeavored to reach him by telephone at that address; that he got no reply to his letters and was unable to reach him by telephone; that after obtaining the default judgment he wrote Clarence L. Jones at 2517 Benton Boulevard, asking him to pay the judgment but got no response.
The witness further testified that he was advised by Mr. Anderson, of defendant company, that the judgment debtor Jones was employed by the Barney Bernard Motor Company; that he telephoned Bernard's place of business two or three times and asked for Clarence L. Jones; that 'they always said, 'We don't call him to the phone, leave your number and your name and I will have him call you"; that on each occasion that he called Bernard's place of business he was advised to leave his number and that Jones would be told to call him; that he left his number each time but Jones did not call; that following these attempts to reach Jones at Bernard's he had the garnishment issued and summoned Bernard as garnishee.
Plaintiff and his witness Bernard (the garnishee) testified that telephone calls were received by plaintiff when he was in but that he would be out for short periods of time testing cars and it was the practice to keep his calls for him when he was out. Plaintiff testified that no call from Searing ever reached him. Bernard testified that no one representing the defendant herein ever made any personal inquiry concerning Clarence L. Jones. Plaintiff testified that he did not know Mr. Searing at the time the garnishment was served and that he received no communication from him, or the defendant herein prior to the garnishment. Searing testified that he had never seen or talked to debtor Jones. Both plaintiff and Mr. Searing testified that they had never seen each other until a few days before the trial of the case at bar. Searing said that when he procured the garnishment he believed that the Clarence L. Jones employed at Bernard's was debtor Jones; that he had no ill-will or ill feelings against either of the Joneses; that neither had ever called him, written him or had any contact with him.
Mr. Searing made an affidavit, at the time he filed the suit in the Justice Court, stating, to the effect, that the defendant, debtor Jones, was not, at that time, in the Military Service of the United States. He testified, at the trial of the present case, that at the time he made the affidavit he did not know this to be a fact.
The summons of garnishment was served upon Bernard on Wednesday, October 22, 1941. On the following Saturday he told plaintiff about the garnishment and held up plaintiff's wages for that week. It appears, without dispute, that the garnishment was released the following week. There is some conflict in the evidence as to the manner in which the mistake in identity was presented to the defendant herein.
Plaintiff's wife testified that on the following Monday, after the garnishment was served, she went to the office of the defendant herein and talked to the man to whom she was referred; that she showed him plaintiff's social security card, and some other papers or card which bore his signature, and she was told that the garnishment 'would be taken care of'. She said that she was treated courteously. She further testified that she did not recall seeing Mr. Searing and did not think that she went down to his office.
Bernard testified that, after the garnishment was served, he called Mr. Searing by telephone on behalf of plaintiff and told him that his employee, Jones, had been garnished, but that he did not owe the defendant herein; that Mr. Searing said, 'We will take care of it.'
Mr. Searing's recollection was that plaintiff's wife came to his office about the garnishment; that she told him that her husband was not the same Clarence L. Jones who was indebted to defendant herein; that the witness said that he was sorry and would arrange immediately to get a release of the garnishment; that he called the Justice Court and asked the Clerk to send a release of the garnishment.
As before stated, the garnishment was voluntarily released by Mr. Searing, without any further proceedings, on Wednesday or Thursday following its service.
Defendant insists that its instruction in the nature of a demurrer to the evidence should have been given; that probable cause was shown for the issuance of the garnishment, in that, there was an identity in the name of the debtor Jones and the plaintiff; that, at any rate, there was no evidence that defendant procured the issuance of the garnishment without probable cause, and there was no evidence of malice.
Probable cause, in proceedings of this kind, is said to consist in a reasonable belief in the existence of facts necessary to sustain the proceedings, such belief being founded upon circumstances which would be sufficient to produce such belief in a man of ordinary caution, that is, founded upon reasonable grounds. 5 Am.Jurisprud. 192; Wilcox v. Gilmore, 320 Mo. 980, 8 S.W.2d 961, 962; 38 C.J. pp. 417, 418.
In this connection, defendant says: ...
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