Kvasnicka v. Montgomery Ward & Co., 38003.

CourtUnited States State Supreme Court of Missouri
Writing for the CourtDalton
Citation166 S.W.2d 503
Decision Date08 September 1942
Docket NumberNo. 38003.,38003.
PartiesLUCILE KVASNICKA, Plaintiff-Respondent, v. MONTGOMERY WARD & COMPANY, a Corporation, and IRA JOHNSON, Defendants, MONTGOMERY WARD & COMPANY, a Corporation, Appellant.
166 S.W.2d 503
LUCILE KVASNICKA, Plaintiff-Respondent,
v.
MONTGOMERY WARD & COMPANY, a Corporation, and IRA JOHNSON, Defendants, MONTGOMERY WARD & COMPANY, a Corporation, Appellant.
No. 38003.
Supreme Court of Missouri.
Division One, September 8, 1942.
Rehearing Denied, November 10, 1942.
Motion to Transfer to Banc Overruled, December 1, 1942.

[166 S.W.2d 504]

Appeal from Jackson Circuit Court.Hon. Brown Harris, Judge.

REVERSED.

L.E. Oliphant, Elton L. Marshall and Watson, Ess, Groner, Barnett & Whittaker for appellant.

(1) The court erred in overruling this defendant's demurrer to the evidence and refusing to direct a verdict for this defendant as requested in Instruction A at the close of the plaintiff's case, and Instruction C at the close of all of the evidence. Higgins v. Knickmeyer-Fleer Realty & Inv. Co., 74 S.W. (2d) 805, 335 Mo. 1010; Laughlin v. St. Louis Union Trust Co., 50 S.W. (2d) 92, 330 Mo. 523; Stoker v. Elniff, 33 S.W. (2d) 977; Madden v. Covington, 86 S.W. (2d) 190; Polk v. M.-K.-T.R. Co., 111 S.W. (2d) 138, 341 Mo. 213; Bonzo v. Kroger Grocery & Baking Co., 125 S.W. (2d) 75, 344 Mo. 127; Dye v. Loewer, 94 S.W. (2d) 948; Wilkinson v. McGee, 265 Mo. 574; Dawes v. Starrett, 82 S.W. (2d) 43, 336 Mo. 897. (2) The court erred in giving plaintiff's Instruction 6 because it entirely ignored the indictment. Wilkinson v. McGee, 265 Mo. 574; Dawes v. Starrett, 82 S.W. (2d) 43, 336 Mo. 897; Bonzo v. Kroger Grocery & Baking Co., 125 S.W. (2d) 75, 344 Mo. 127. (3) The court erred in refusing to give this defendant's Instruction M because there is no duty, in investigating a crime, to have any discussion with the party being investigated in connection therewith, or to investigate to determine whether such party claims an alibi. Bonzo v. Kroger Grocery & Baking Co., 125 S.W. (2d) 75, 344 Mo. 127. (4) The court erred in refusing to give this defendant's requested Instruction K to the effect that the question of the guilt or innocence of the plaintiff was not an issue. Laughlin v. St. Louis Union Trust Co., 50 S.W. (2d) 92, 330 Mo. 523; 18 R.C.L. 40; Wilkinson v. McGee, 265 Mo. 574; Barton v. Woodward, 32 Idaho, 375, 182 Pac. 916; Higgins v. Knickmeyer-Fleer R. & Inv. Co., 74 S.W. (2d) 805, 335 Mo. 1010; Stubbs v. Mulholland, 168 Mo. 47; Bonzo v. Kroger Grocery & Baking Co., 125 S.W. (2d) 75, 344 Mo. 127. (5) The court erred in permitting the witness G.H. Hodges, a hardwriting expert called by the plaintiff, to testify that in his opinion the plaintiff did not write Exhibit 1, the forged check. Stubbs v. Mulholland, 168 Mo. 47. (6) The court committed error in permitting the plaintiff to read into the record the testimony of Berta Bolar which had been given in connection with the trial of the plaintiff on the criminal charge contained in the indictment. Chawkley v. Wabash Ry. Co., 297 S.W. 20, 317 Mo. 782; Varas v. James Stewart & Co., 17 S.W. (2d) 651, 223 Mo. App. 385; Conway v. Silver King Oil & Gas Co., 94 S.W. (2d) 942; Youel v. Bank of Atchison County, 117 S.W. (2d) 376; Shelton v. Wolf Cheese Co., 93 S.W. (2d) 947, 338 Mo. 1129; Evans v. Sears Roebuck & Co., 129 S.W. (2d) 53; Haglage v. Monark Gasoline & Oil Co., 298 S.W. 117, 221 Mo. App. 1129; Willis v. Reed, 190 S.W. 377; Showen v. Street Railway Co., 164 Mo. App. 41.

Clif Langsdale, Harold Marshall and Clyde Taylor for appellee.

(1) Plaintiff made a submissible case. The court did not err in overruling defendant's demurrer to the evidence and in refusing to direct a verdict for the defendant. Smith v. Ry., 152 S.W. (2d) 204; Clark v. Bridge Co., 24 S.W. (2d) 143; Gorman v. St. Louis, 28 S.W. (2d) 1023; Ingram v. Ry., 30 S.W. (2d) 989; Klassen v. Lenz, 62 S.W. (2d) 737; Young v. Wheelock, 64 S.W. (2d) 950; Harden v. Ry., 70 S.W. (2d) 1075; Jones v. Ry., 63 S.W. (2d) 94; Parrent v. Ry., 70 S.W. (2d) 1069; Dawes v. Starrett, 82 S.W. (2d) 43; Steppuhn v. Ry., 204 S.W. (2d) 579; Firer v. Lowery, 59 Mo. App. 92; Randol v. Kline, 49 S.W. (2d) 112; Wilcox v. Gilmore, 8 S.W. (2d) 961; Foster v. Ry., 14 S.W. (2d) 561; 38 C.J., pp. 412; 18 R.C.L. 44; Beatty v. Puritan Cosmetic Co., 158 S.W. (2d) 191; Stubbs v. Mulholland, 168 Mo. 47; Waddell v. Krause, 241 S.W. 964; Campbell v. Myers, 287 S.W. 842; Peterson v. Fleming, 297 S.W. 163; Randol v. Kline, 18 S.W. (2d) 500; Alexander v. Emmke, 15 S.W. (2d) 868; LaFont v. Richardson, 119 S.W. (2d) 25; Sharp v. Johnson, 76 Mo. l.c. 670; Randol v. Klein, 18 S.W. (2d) 505; Foster v. Ry., 14 S.W. (2d) 571; Peck v. Choteau, 91 Mo. 149. (2) The acts and omissions of defendant's agents and representatives in and about this prosecution were done or omitted within the scope of their employment and were in law the acts and omissions of defendant. These agents and representatives of defendant were Merchants' Association Credit Bureau and Frank Johnson, its manager; Harold Hart, head of the police department of Montgomery Ward; Berta Bolar credit manager; Blanche Slyback, cashier; and Roy V. Hoggatt, furniture salesman; Ira Johnson and Ila Miller. Chandler v. Gloyd, 116 S.W. 1073; Higgins v. Turnpike Co., 46 N.Y. l.c. 27, 7 Am. Rep. 293; Wright v. Automobile Co., 250 S.W. 368; Vimont v. Kresge, 291 S.W. 159; Peterson v. Fleming, 297 S.W. 163; Hunt v. Ruterbusch, 38 S.W. (2d) 503; Wright v. Hoover, 241 S.W. 89; Coffman v. Shell, 72 S.W. (2d) 97; Dye v. Loewer, 84 S.W. (2d) 949; Dawes v. Starrett, 82 S.W. (2d) 42; Fellhauser v. Ry., 177 S.W. 795; Payne v. Ry., 79 S.W. 619; Carp v. Insurance Co., 101 S.W. 79 Steppuhn v. Ry., 204 S.W. 579; 38 C.J., pp. 395, 455; Eastman v. Leiser, 148 Minn. 46, 181 N.W. 109. (3) Refusal of the court to give defendant's requested Instruction K was not error because the giving of such instruction would have had the effect of withdrawing from consideration by the jury of evidence that was clearly admissible to some, at least, of the issues; because the instruction singled out and gave undue emphasis to a single phase of the evidence without correlating itself to the whole case; and because such instruction was ambiguous and misleading and one that would or might tend to confuse the jury. Laughlin v. Trust Co., 50 S.W. (2d) 98; Wilkinson v. McGee, 265 Mo. 574; Barton v. Woodward, 182 Pac. 916; Higgins v. Investment Co., 74 S.W. (2d) 805; Stubbs v. Mulholland, 168 Mo. 47; Bonzo v. Kroger, 125 S.W. (2d) 75; State ex rel. v. Shane, 134 S.W. (2d) 58; City v. Worthington, 52 S.W. (2d) 1003; Corbett v. Terminal Ry., 82 S.W. (2d) 97; Dawes v. Starrett, 82 S.W. (2d) 43; Zumalt v. Ry., 266 S.W. 717; Howard v. Fred Co., 7 S.W. (2d) 448; Fine v. St. Louis, 39 Mo. 59; Rose v. Spies, 44 Mo. 20; Jones v. Jones, 57 Mo. 138; First Natl. Bank v. Thomas, 44 Mo. 91; Robinson v. Crusen, 202 S.W. 449; Burtch v. Ry., 236 S.W. 338; Camores v. Comilia, 9 Mo. App. 205; Miller v. Marks, 20 Mo. App. 369; Blair v. Ry., 31 Mo. App. 224; Landrum v. Ry., 112 S.W. 1000; Disbrow v. Peoples Co., 119 S.W. 1007; Fitzsimmons v. Commerce Co., 209 S.W. 347; Martin v. Insurance Co., 247 S.W. 1024; Ham v. Hammond, 277 S.W. 938; Miller v. Williams, 76 S.W. (2d) 355; Hough v. Ry., 100 S.W. (2d) 499; Crole v. Thomas, 17 Mo. 329; Clamp v. Rodewall, 19 Mo. 449; Clarke v. Kitchen, 52 Mo. 316; Price v. Breckinridge, 5 S.W. 20; Belt v. Goode, 31 Mo. 128; Greer v. Ry., 80 Mo. 555; Luft v. Strobel, 19 S.W. (2d) 721; Freeman v. Berberich, 60 S.W. (2d) 393; Lee v. Shryack, 58 S.W. (2d) 406; Chrismar v. Ry., 64 S.W. 752; Weisbaar v. K.C. Co., 128 S.W. (2d) 332. (4) The court did not err in permitting the witness G.H. Hodges, a handwriting expert to testify that in his opinion the plaintiff did not write the forged check. (5) The court did not err in giving plaintiff's instruction 6 for the reason that this instruction was properly applicable to the facts in the case and correctly stated the law. The instruction is almost literally a copy of an instruction given without criticism by counsel or the court in the cause of Dawes v. Starrett, 82 S.W. (2d) 43. Steppuhn v. Ry., 204 S.W. 579; Firer v. Lowery, 59 Mo. App. 92; Randol v. Kline, 49 S.W. (2d) 112; Wilcox v. Gilmore, 8 S.W. (2d) 961; Foster v. Ry., 14 S.W. (2d) 561; 38 C.J. 12; 18 R.C.L. 44. (6) The court did not err in refusing to give defendant's requested instruction M first because the instruction in no way could be applicable to the facts in this case and, second, because it does not correctly state the law in that it declared that there was no duty whatever or under any circumstances to make any investigation to determine whether the accused person had an alibi. Miller v. Ry., 41 Fed. 898; Bonzo v. Kroger, 125 S.W. (2d) 77. (7) There was no error in the court's refusal to discharge the jury because of the alleged prejudicial argument of plaintiff's counsel. (8) Malice may be inferred from want of probable cause. Waddell v. Krause, 241 S.W. 964; Campbell v. Myers, 287 S.W. 842; Peterson v. Fleming, 297 S.W. 163; Randol v. Kline, 18 S.W. (2d) 500; Alexander v. Emmke, 15 S.W. (2d) 868; LaFont v. Richardson, 119 S.W. (2d) 25.

DALTON, C.


Action for malicious prosecution. Plaintiff sought $50,000 actual and $50,000 punitive damages. The jury returned a verdict for plaintiff for $8,000 "compensatory damages only" against defendant Montgomery Ward and Company, but found in favor of defendant Ira Johnson. Defendant Montgomery Ward and Company has appealed.

On the morning of May 25, 1936, a woman passed a forged check at the Montgomery Ward and Company's store in Kansas City. Less than a month later the handwriting in the check was identified by two handwriting experts as the same as that of an application for employment filed by the plaintiff with an employment agency. Plaintiff was subsequently arrested (June 22, 1936) and identified (by three Montgomery Ward and Company employees, who dealt with the woman) as the person who passed the check. Thereafter, on September 12, 1936, the plaintiff was indicted by a grand jury of Jackson County, the indictment containing counts...

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22 practice notes
  • Lemons v. Lewis, Civil Action No. 95-2507-EEO.
    • United States
    • United States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas
    • April 22, 1997
    ...the charge and that the falsity, if so, was discoverable upon reasonable investigation." Kvasnicka v. Montgomery Ward & Co., 350 Mo. 360, 166 S.W.2d 503, 510, 515 To the extent plaintiff is attempting to assert a claim of false arrest/false imprisonment against Officer Lewis for plaintiff's......
  • Stockley v. Joyce, No. 4:18-CV-873 CAS
    • United States
    • United States District Courts. 8th Circuit. United States District Court (Eastern District of Missouri)
    • February 14, 2019
    ...evidence of Deeken's probable cause, which plaintiff bears the burden to rebut. Id. at 510 (citing Kvasnicka v. Montgomery Ward & Co., 166 S.W.2d 503, 505 (Mo. 1942)).13 The prima facie presumption of probable cause may be overcome by showing that the judge's finding was procured through fa......
  • Kingsley v. Lawrence Cnty., Case No. 3:17-cv-05007-SRB
    • United States
    • U.S. District Court — Western District of Missouri
    • February 25, 2019
    ...that another had committed a crime." Dodson v. MFA Ins. Co., 509 S.W.2d 461, 467 (Mo. 1974) (citing Kvasnicka v. Montgomery Ward & Co., 166 S.W.2d 503, 513 (Mo. 1942)). The following circumstances "constitute prima facie evidence of a malicious-prosecution defendant's probable cause and con......
  • Moorehead v. District of Columbia, No. 97-CV-881.
    • United States
    • March 16, 2000
    ...investigation." Moad v. Pioneer Fin. Co., 496 S.W.2d 794, 799 (Mo. 1973) (citing Kvasnicka v. Montgomery Ward & Co., 350 Mo. 360, 166 S.W.2d 503, 510 (1942)). "In this land of freedom of liberty, with all of its concomitant constitutional rights and protections, if we wish to have our citiz......
  • Request a trial to view additional results
27 cases
  • Lemons v. Lewis, Civil Action No. 95-2507-EEO.
    • United States
    • United States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas
    • April 22, 1997
    ...the charge and that the falsity, if so, was discoverable upon reasonable investigation." Kvasnicka v. Montgomery Ward & Co., 350 Mo. 360, 166 S.W.2d 503, 510, 515 To the extent plaintiff is attempting to assert a claim of false arrest/false imprisonment against Officer Lewis for plaintiff's......
  • Moffett v. Commerce Trust Co., 39509
    • United States
    • United States State Supreme Court of Missouri
    • February 11, 1946
    ...Mo. 660; Catlett v. Chestnut, 146 So. 547, 108 Fla. 475; Weber v. Strobel, 225 S.W. 925; Kvasnicka v. Montgomery Ward & Co., 350 Mo. 360, 166 S.W.2d 503; Guhman v. Grothe, 346 Mo. 427, 142 S.W.2d 1; Seegers v. Marx & Haas Clothing Co., 334 Mo. 632, 66 S.W.2d 526; Mitchell v. Greenough, 100 ......
  • Stockley v. Joyce, 4:18-CV-873 CAS
    • United States
    • United States District Courts. 8th Circuit. United States District Court (Eastern District of Missouri)
    • February 14, 2019
    ...evidence of Deeken's probable cause, which plaintiff bears the burden to rebut. Id. at 510 (citing Kvasnicka v. Montgomery Ward & Co., 166 S.W.2d 503, 505 (Mo. 1942)).13 The prima facie presumption of probable cause may be overcome by showing that the judge's finding was procured through fa......
  • Moorehead v. District of Columbia, 97-CV-881.
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • March 16, 2000
    ...investigation." Moad v. Pioneer Fin. Co., 496 S.W.2d 794, 799 (Mo. 1973) (citing Kvasnicka v. Montgomery Ward & Co., 350 Mo. 360, 166 S.W.2d 503, 510 (1942)). "In this land of freedom of liberty, with all of its concomitant constitutional rights and protections, if we wish to have our citiz......
  • Request a trial to view additional results

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