Knost v. Terminal R. Ass'n of St. Louis
| Decision Date | 01 July 1949 |
| Docket Number | 27605 |
| Citation | 222 S.W.2d 593 |
| Parties | KNOST v. TERMINAL R. ASS'N OF ST. LOUIS |
| Court | Missouri Court of Appeals |
Not to be reported in State Reports.
York & Seegers, St. Louis, for appellant.
William A. Thie, St. Louis, Arnot L. Sheppard, St. Louis, for respondent.
HUGHES
In this action plaintiff-appellant sued for damages, both actual and punitive, for the alleged malicious prosecution by the defendant-respondent of a charge of petit larceny, the plaintiff having been acquitted after trial by jury in the St. Louis Court of Criminal Correction. Plaintiff recovered a verdict and judgment for $ 5,000 actual damages only. Thereafter, the trial court, on defendant's motion, set aside such verdict and judgment and entered judgment for the defendant. From this final judgment of the circuit court plaintiff appeals.
The basis of plaintiff's suit is the institution and prosecution of a charge against him of the larceny of nine pieces of flex board and a roll of asphalt building paper belonging to defendant, of which charge he was acquitted as above stated. The defense was that plaintiff was guilty of the charge, and alleged that defendant had probable cause to believe that plaintiff was guilty of such charge and to institute the prosecution.
At the time of his arrest, and for about eight years prior thereto plaintiff was and had been a carpenter in the employ of the defendant. His testimony was that a few days before his arrest on November 12, 1947, he had asked his assistant foreman, Edward Keigley, what had become of an old roll of paper that would not unroll without tearing at one end, and Keigley told him that it had been brought in and was to be thrown in the scrap car. Thereupon, he told Keigley that he would like to have that roll of paper; that he believed he could saw off the end of it and salvage what was left; that he needed a little of such paper to repair a building or shed at his home; that Keigley said, That he said, 'I believe it is enough that I could use it.' And Keigley then said And that he said no, he didn't think he wanted to do that, to which Keigley replied, This conversation occurred at a carpenter shop maintained by the defendant at 12th Street.
Plaintiff further testified that about fifteen minutes later, when they had arrived at the subway of the Union Station at 18th Street, where there was a carpenter's locker room and a storage room for materials, Keigley said to him, 'Here Knost, I am going out and get you a flashlight and you can go in and get that roll of paper.' And he replied, This was on Saturday, November 8th, but notwithstanding the conversations above narrated, plaintiff testified that Saturday evening about three-thirty or a quarter to four he entered the storage room and saw the paper in there, and took the top roll and pushed it through a hole in the partition wall and into the locker room, which opens on a driveway under Union Station. That on the following Monday Keigley saw the roll of paper and asked, 'What is that?' And he replied, 'That is the roll of paper you gave me.'
Plaintiff further testified that he did not drive his car to work until the following Wednesday, November 12th, the day he was arrested. That Keigley knew he had his car that day. That following his day's work he returned to the locker room where the roll of paper had stood since the previous Saturday. His car was in the driveway near the door to the locker room. In the locker room were small odds and ends of flex board stacked preparatory to being destroyed as unusable. Plaintiff took from the pile nine pieces of flex board about 14 x 40 inches, and placed them in his car. He said that in turning away from his car he saw Clarence Johns, a young carpenter's helper, who was with him, carrying the roll of paper and saw him put the roll of paper in his (plaintiff's) car, and that immediately he was placed under arrest by a special agent of the defendant. Plaintiff further testified that he was standing there facing Clarence, who had just put the roll of paper in his car, when Officer Powell walked on the scene and pointed to the paper and said, 'Where are you going with that roll of paper?' And he said, 'What is that?' and Powell said, 'Where are you going with that roll of paper?' and he told Powell he was going to 12th Street with it, and Powell said, 'Who told you to?' and he replied, 'Mr. Keigley.' Then Powell said, 'No, no, that isn't what Keigley told me.' And he replied, 'Well, that is what he told me.' And Powell then said, 'Well, you will have to come to the and he replied, 'All right.' That thereafter when Officer Bates showed up he immediately said, 'You son of a bitch, I've got you, I've been watching you for six months.' Afterwards at the police station Officer Wolinski asked plaintiff what he was going to do with that roll of paper, and he replied, 'I told him that I had been told to bring it to 12th Street.' Then the officer asked, 'Did Mr. Keigley tell you that?' Plaintiff replied, 'Yes, sir.'
On cross-examination plaintiff testified that no one helped him in taking the roll of paper from the storeroom and placing it in the locker room, and that it was the same roll of paper that he was claiming because Keigley had given it to him, and that when he asked Keigley for it his intention was to take it to his home and use it, but that he changed his mind about it the following Monday. Asked the question, 'And he (Johns) carried the paper and put it in the car for you?' he answered, Plaintiff further said that he was not told by Keigley to bring the roll of paper to 12th Street and that the statements he made to Powell and Wolinski to that effect were not true. That immediately after his arrest he told Johns to go up to 12th Street and tell Keigley that 'The dicks got me up here with that roll of paper,' and that, 'he could tell them he told me to bring it to 12th Street.' Plaintiff admitted that he had testified in the court of criminal correction that Keigley could lose his job over it, that is, 'Well, for giving away a roll of paper, probably, or for giving anything away as far as that was concerned' and that he was trying to cover up for Keigley. Plaintiff introduced evidence that his reputation for honesty was good.
The position taken by plaintiff in the trial, as stated in his brief, was that he had reluctantly accepted a gift of the roll of paper, but had never requested that it be put in his car.
Plaintiff's case was in no manner aided by defendant's evidence, hence it is only necessary to briefly summarize defendant's evidence, to show that it in no way aided plaintiff's case. Edward Keigley said that the only conversation he had with Knost was that Knost told him there was some damaged paper, and that he (Knost) 'would like to cop that.' And that he said to Knost, 'You can steal the railroad if you want to, it doesn't belong to me.' He further said that he saw the roll of paper in the locker room but did not know how it got there, and that he had never offered Knost a roll of paper. Both Johns and Powell testified that Knost himself put the roll of paper in his car.
This court in the case of La Chance v. National Pigments & Chemical Co., Mo.App., 104 S.W.2d 693, loc. cit. 697, and citing the case of Higgins v. Knickmeyer-Fleer Realty & Investment Co., 335 Mo. 1010, 74 S.W.2d 805, stated the elements that must be applied in this case as follows: 'In an action for damages for malicious prosecution the elements of the plaintiff's case are, first, the commencement or prosecution of the proceeding against the plaintiff; second, its legal causation by the defendant; third, its termination in favor of the plaintiff; fourth, the absence of probable cause for such proceeding; fifth, the presence of malice therein; and sixth, damage resulting to the plaintiff by reason thereof.'
The burden of proving these elements rests on the plaintiff. Inasmuch as the evidence and defendant's admissions clearly show that the prosecution was commenced against the plaintiff, and was caused by the defendant, and that it terminated in favor of the plaintiff, we are here only concerned with the fourth and fifth elements, to wit, whether such prosecution of plaintiff was without probable cause, and whether there was malice on defendant's part. If there was substantial evidence on plaintiff's behalf to prove want of probable cause, the burden was on the defendant to rebut the inference of malice, and the case was properly submitted to the jury, and the motion for a directed verdict would be without merit. Stubbs v. Mulholland, 168 Mo. 47, 67 S.W. 650. And it must be conceded that the rule is that, in testing the sufficiency of the evidence to make out a case submissible to a jury upon motion for a directed verdict, plaintiff's evidence must be considered true, and the plaintiff given the benefit of every reasonable inference which can be drawn from the evidence as a whole. Nash v. Normandy State Bank, Mo.Sup., 201 S.W.2d 299, loc. cit. 300. 'But it is a judicial function to determine whether the evidence is substantial, and, if it is not, there is nothing for the jury to decide.' Nash v. Normandy State Bank, supra; Morgan v. Kroger Grocery & Baking Co., 348 Mo. 542, 154 S.W.2d 44; Randol v. Kline's, Inc., 322 Mo. 746, 18 S.W.2d 500. The foundation of a suit for malicious prosecution...
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