Jordan v. Chicago & Alton Railway Co.

• Decision Date: 01 March 1904
• Citation: 79 S.W. 1155,105 Mo.App. 446
• Parties: JORDAN, Admx., Defendant in Error, v. CHICAGO & ALTON RAILWAY COMPANY, Plaintiff in Error
• Court: Missouri Court of Appeals

79 S.W. 1155

105 Mo.App. 446

JORDAN, Admx., Defendant in Error, v. CHICAGO & ALTON RAILWAY COMPANY, Plaintiff in Error

Court of Appeals of Missouri, St. Louis

March 1, 1904

Appeal from Audrain Circuit Court.--Hon. E. M. Hughes, Judge.

REVERSED.

STATEMENT.

This proceeding was inaugurated December 7, 1900, returnable to the January term, 1901, for damages for malicious prosecution upon charges of petit larceny alleged to have been committed July 5 and 7, 1900; the suit was brought against the Chicago & Alton Railroad Company, and the summons was issued against and the return showed services upon the railroad company which was alleged to be a corporation under the laws of the State of Illinois. At the return term the railroad company defendant, answered by a plea in abatement, averring that it appeared for that purpose only and that plaintiff ought not to have or maintain the action for the reasons that at the time of the commencement thereof, defendant was a corporation under the laws of the State of Illinois and was not at the time of the alleged injuries, nor had it since been, nor was it then operating a railroad or doing business in the State of Missouri, and the answer concluded with a general denial. Thereupon plaintiff moved to allow the amendment of the petition, summons and return in the cause by correcting (as averred) a mistake in the name of the defendant in this, that therein the defendant was named the "Chicago & Alton Railroad Company" and that the real name of the defendant was the "Chicago & Alton Railway Company" and that the latter was the corporation sued and intended to be sued, and the summons was actually served upon an agent of the Chicago & Alton Railway Company, which is an Illinois corporation, and that in calling the defendant a railroad company instead of a railway company, plaintiff made a mistake; but that the Chicago & Alton Railway Company was then and had been for a long space of time known as the Chicago & Alton Railroad Company, and by such last named title, defendant had transacted its business and exercised its corporate franchises and proclaimed to the plaintiff and the public that its real name was the "Chicago & Alton Railroad Company" and was better known and conducted more business under said last name than under its legal name by all of which plaintiff was led into the error of calling it "railroad" instead of "railway" company.

This motion without any evidence thereon was sustained, plaintiff granted leave to file an amended petition, and amend the original summons and return, and the sheriff, by leave of court, amended his return on the original summons, to which action and the rulings of the court in sustaining such motion and substituting the name of the Chicago & Alton Railway Company for that of the Chicago & Alton Railroad Company, as defendant in the original writ of summons and return filed and in permitting plaintiff to amend such petition, writ and return, defendant duly saved its exceptions.

The clerk of the court, in turn, amended the original writ by substituting for the words "Chicago & Alton Railroad Company" as originally written, the words "Chicago & Alton Railway Company" over the exceptions of defendant. Thereupon plaintiff filed an amended petition, substituting the Chicago & Alton Railway Company as defendant, in lieu of the railroad company, but no summons was issued for the substituted defendant. Defendant then filed a motion to strike out its name as defendant in the amended petition, writ and return, alleging its appearance for that purpose only, and assigning that the original petition stated a cause of action against the Chicago & Alton Railroad Company, a different corporation also existing under the laws of the State of Illinois, and the original writ in the cause was issued against, directed to and summoned the Chicago & Alton Railroad Company, and the original return on such original writ showed service upon the Chicago & Alton Railroad Company to appear and answer said original petition, and the Chicago & Alton Railroad Company appeared and answered the original petition, and the court had no power to allow the amendment of the original petition, writ and return by substituting the name of the Chicago & Alton Railway Company as party defendant, for that of the Chicago & Alton Railroad Company; for the Chicago & Alton Railway Company had not been served with process as required by law, nor had it appeared therein, the suit and summons being directed against another company the recent lessor, and the substitution of the Chicago & Alton Railway Company for the original defendant railroad company by amendment, was a substitution of one cause of action for another and of one defendant for another. The court refused to permit the introduction of the evidence tendered to sustain such motion and overruled it, and the defendant railway company filed a motion to quash the sheriff's amended return, assigning that neither upon the face of the return nor upon the face of the petition and writ served as shown by the original petition, writ and return thereto attached, had a petition or writ directed to the defendant been served by the sheriff as shown by the original return, but the original petition and writ so served by the sheriff were directed to and against the Chicago and Alton Railroad Company, and no petition and writ of summons had been issued from the court against the Chicago & Alton Railway Company, nor had any copy of any petition or writ against the Chicago & Alton Railway Company been served upon the agent of the Chicago & Alton Railway Company, except the original petition and writ against the Chicago & Alton Railroad Company, nor had any copy of the petition and writ as amended, making the railway company defendant in the cause, ever been served upon defendant, all such facts appearing by the pleadings, writs and returns, original and amended.

The court refused to hear the evidence offered to establish the grounds assigned, and overruled the motion to quash the amended petition, writ and return, and the defendant filed an answer to the amended petition, again pleading in abatement that the court had no jurisdiction in the cause over defendant, the railway company, because the original petition therein stated a cause of action against the Chicago & Alton Railroad Company, another corporation, and the original writ in the cause was issued against, directed to and commanded such other corporation, the Chicago & Alton Railroad Company, to appear and answer therein; that the original return on said original writ recited and showed service upon the Chicago & Alton Railroad Company, which appeared and answered such original petition; that the court had no power to allow the amendment of such original petition, writ and return by substituting the name of the Chicago & Alton Railway Company as party defendant for the name of the Chicago & Alton Railroad Company; that the Chicago & Alton Railway Company since the filing of the petition had not been served with process as required by law, nor had it appeared except by this answer under compulsion of the court, and that the substitution of the railway company for the original defendant, the railroad company as defendant, by amendment, was a substitution of one cause of action for another and of one defendant for another, without the service of process as required by law.

Defendant incorporated in the same answer, in addition to the foregoing plea in abatement, a general denial and an affirmative plea of good faith on its part, and that the prosecution was instituted by the duly qualified and acting prosecuting attorney of Audrain county, upon a full investigation of the facts.

A motion to strike out the plea in abatement as constituting no defense to plaintiff's cause of action was filed and sustained by the court over defendant's exceptions, and the cause proceeded to trial before a jury, the issues being joined by a general denial by way of reply, and a verdict for plaintiff for $ 250 compensatory damages and $ 750 punitive damages, was awarded.

Judgment reversed.

F Houston for plaintiff in error.

(1) There is no power possessed by a court, or by a judge, to substitute a right party for a wrong party, plaintiff or defendant. This is a plain case of the substitution of a new party by the court, and not a question of amendment as counsel for defendant in error contends. Dicey on Parties, p 522, rule 114; Thompson v. Allen, 86 Mo. 85, citing 73 Mo. 688; Hajek v. Benevolent Society, 66 Mo.App. 568. (2) Nor does the defendant waive its right to plead to the jurisdiction by answering on the merits, or by failing to except, or by answering over and including in its answer a renewal of its plea to the jurisdiction, or by answering to the merits. Christian v. Williams, 35 Mo.App. 297; Byler v. Jones, 79 Mo. 261. (3) In an action for malicious prosecution, as this is, both malice and want of probable cause must be shown--want of probable cause alone is not sufficient--malice is also necessary and must be shown. There must be affirmative proof of both these facts. They must be shown as any other facts and both must concur. Riney v. Vallandingham, 9 Mo. 816; Frissell v. Relfe, 9 Mo. 860; Hill v. Palm, 38 Mo. 13; Sparkling v. Conway, 75 Mo. 512; Scovill v. Glasner, 79 Mo. 449; Moody v. Deutsch, 85 Mo. 237; Peck v. Chouteau, 91 Mo. 138; Grant v. Rinhart, 33 Mo.App. 74. (3) The plaintiff must show malice in beginning or continuing the prosecution. Without malice there can be no recovery. Sharpe v. Johnson, 59 Mo. 557; S. C., 76 Mo. 660; Van Sickle v. Brown, 68 Mo. 627; Nolen v. Kaufman, 70 Mo.App. 651. (4) Malice means that the wrongdoer not only intended to do the act shown to be wrongful, but also that he knew...