Laughlin v. St. Louis Union Trust Co.

• Decision Date: 27 May 1932
• Docket Number: 29313
• Citation: 50 S.W.2d 92,330 Mo. 523
• Parties: Henry D. Laughlin v. St. Louis Union Trust Company, Appellant
• Court: Missouri Supreme Court

50 S.W.2d 92

330 Mo. 523

Henry D. Laughlin v. St. Louis Union Trust Company, Appellant

No. 29313

Supreme Court of Missouri

May 27, 1932

Appeal from Circuit Court of St. Louis County; Hon. Jerry Mulloy, Judge;

Reversed.

Jacob M. Lashly, A. E. L. Gardner and Holland, Lashly & Donnell for appellant.

(1) The court erred in refusing to give the peremptory instruction asked by appellant at the close of all the testimony and refused by the court. Under the allegations of the petition in this case, this is an action for malicious prosecution and not an action for wrongful attachment. It was essential therefore, for respondent to prove that the said attachment suit, in which St. Louis Union Trust Company was plaintiff and Henry D. Laughlin was defendant, was instituted by said Trust Company without probable cause. As the testimony of the respondent definitely showed that the first trial of said attachment suit resulted in a verdict and judgment in favor of said Trust Company and against said Henry D. Laughlin, it conclusively showed that said attachment suit was not brought by said Trust Company without probable cause. Wilkinson v. McGee, 265 Mo. 574; Boogher v. Hough et al., 99 Mo. 183; Wilcox v. Gilmore, 8 S.W.2d 961; Crescent City v. Butchers Union, 120 U.S. 141, 30 L.Ed. 614. (2) The court erred in refusing to give the peremptory instruction asked by appellant at the close of all the testimony and refused by the court. Even if it be held that this action was one for wrongful attachment, and not an action for malicious prosecution, said peremptory instruction should have been given, because respondent utterly failed to prove that he sustained any actual damages as a direct result of the institution or the prosecution of the attachment suit. In a wrongful attachment suit a plaintiff must prove not only that the attachment in question was wrongfully brought, but also that he sustained actual damages as a result thereof. As the attachments in the attachment suit were issued without bond against Henry D. Laughlin, as a nonresident, all the latter had to do in order to secure a dissolution of the attachments was to file an answer and request such dissolution. The attachment suit was filed on May 17, 1917 and Henry D. Laughlin filed an answer therein on the 14th day of October, 1918. (a) Simultaneously with doing so, he could, for the asking, have secured a dissolution of the attachments, but he did not move for such dissolution until October 26, 1923. R. S. 1909, sec. 2298. (b) The law is that it was the duty of Henry D. Laughlin, defendant in the attachment suit, to so move for a dissolution of said attachments when he filed his answer, and thus escape any "avoidable consequences." 17 C. J. 769, 770; Fullerton v. Fordyce, 144 Mo. 519; Harrison v. Railroad Co., 88 Mo. 625; Haysler v. Owens, 61 Mo. 270; State ex rel. v. Powell, 44 Mo. 436; Fisher v. Goebel, 40 Mo. 475; Harrison v. Western Union, 187 Mo.App. 580; Boggess v. Met. St. Ry. Co., 118 Mo. 328; Pittman v. West, 198 Mo.App. 92; Donovan v. Gibbs, 268 Mo. 279; Sargent v. Fuller, 132 Pa. St. 127, 133; Blanchard v. Brown, 42 Mich. 46, 49; W. B. Morse & Sons v. Lockwood, 295 F. 936. (c) The law is that the only actual damages a plaintiff in a wrongful attachment suit may recover are such reasonable expenses as are incurred in connection with promptly securing a dissolution of the attachment, and there was no testimony in the case that respondent sustained any damages prior to the filing of said answer in the attachment suit. State ex rel. v. Am. Surety Co. of N. Y., 210 Mo.App. 203; State ex rel. v. Parson, 109 Mo.App. 432; State to the Use of v. Fargo, 151 Mo. 280; State v. McHale, 16 Mo.App. 478.

Wurdeman, Stevens & Hoester and Rassieur, Long & Yawitz for respondent.

(1) There is no conclusive presumption of probable cause with reference to an action for malicious prosecution even though at the first trial of the original case a verdict was rendered against the then defendant, where it appeared from the testimony that such trial was attended by erroneous instructions given on request of the then plaintiff and that a new trial was granted by reason thereof resulting in a final verdict for the then defendant, or where it appears that the then plaintiff testified falsely or knew the defendant to be innocent of the charges alleged. The question of probable cause is one for the jury, unhampered by any presumption whatsoever for or against either party. Hanser v. Bieber, 197 S.W. 68; Steppuhn v. Chicago G. W. Railroad Co., 204 S.W. 581; Foster v. Chicago B. & Q. Railroad Co., 14 S.W.2d 571; Bowers v. Walker, 182 S.W. 120; March v. Vandiver, 181 Mo.App. 284; Cramer v. Barmon, 136 Mo.App. 675; Sharpe v. Johnston, 76 Mo. 670; Moffatt v. Fischer, 47 Iowa 474. (2) The measure of damages of wrongful attachment is entirely different from that of malicious prosecution of a wrongful attachment. As to the first, the measure is the amount necessarily expended to obtain a dissolution of the attachment and direct losses up to such dissolution. As to the second, the measure is adequate compensation covering all the elements of injury, including, among other things, attorneys' fees for the entire case, expenses for traveling, hotel bills while attending trial, interest on all moneys attached, loss of time, deprivation of use of property, mental pain and anxiety caused by the disgrace accompanying the prosecution, injury to reputation and business, etc., and punitive damages if the jury sees fit, which under the facts of the case should serve as a proper punishment to the defendant. Walser v. Thies, 56 Mo. 93; 38 C. J. Malicious Prosecution, p. 445, no. 99; p. 447, no. 100; p. 448, no. 102; Rivers v. Norman, 179 S.W. 990; 6 C. J. Attachment, p. 540, no. 1322; Carp v. Ins. Co., 203 Mo. 300; Ruth v. St. Louis Transit Co., 98 Mo.App. 18. (3) Where one attaches another's property and that other is ignorant of ready means by law provided for the dissolution of the attachment, and that other during the pendency of said attachment entreated the attaching plaintiff time and again to dissolve the same or to at least release part of the property from the seizure, but the attaching plaintiff instead of informing the defendant of the simple remedy, takes advantage of defendant's ignorance and embarrassment and seeks to profit thereby, that one will not be heard to complain on appeal that the attachment defendant as a matter of law is precluded by his failure to move the dissolution -- the question of duty and negligence under the evidence being one for the jury, and having been decided against the attaching plaintiff. King v. Railroad Co., 263 S.W. 831; Montague v. Missouri & K. I. Ry. Co., 264 S.W. 817; State ex rel. Mechanics' Am. Natl. Bank v. Sturgis, 208 S.W. 462; Surbeck v. Surbeck, 208 S.W. 647. (4) Where the principal issue involved is one of fact which is peculiarly within the knowledge of the prosecuting party, and the question before the jury is the existence or nonexistence of that particular fact (the prosecuting party and the prosecuted party clashing directly on that point), and where the evidence shows that this fact was not related to attorneys by the prosecuting party, and where the evidence further fails to show what was told the attorneys in the seeking of advice, then advice of counsel is totally irrelevant and immaterial and is not available as a defense to a suit for malicious prosecution, for advice of counsel can only be given with relation to matters of laws, not with relation to matters of fact, and only when there has been a full and fair statement of the facts to the counsel, and a showing to the jury of just what was told to the counsel. March v. Vandiver, 181 Mo.App. 285; Webb v. Byrd, 243 S.W. 405; Bowers v. Walker, 192 Mo.App. 242; Burris v. North, 64 Mo. 428; Hill v. Palm, 38 Mo. 14; Hardy v. Lewis Automobile Co., 297 S.W. 169; Lehmer v. Smith, 284 S.W. 169.

OPINION

Frank, J.

Action by Henry D. Laughlin, plaintiff, against the St. Louis Union Trust Company to recover damages for alleged malicious prosecution of a civil suit aided by attachment. The jury returned a verdict for plaintiff for $ 7500 actual and $ 15,000 punitive damages. Defendant appealed.

The facts out of which this malicious prosecution suit arose are, in substance, as follows:

On May 17, 1917, the trust company brought suit in the Circuit Court of St. Louis, County, against Laughlin on a $ 5000 note with attachment in aid. The ground for the attachment was the nonresidence of Laughlin. At the direction of the trust company all of the real estate owned by Laughlin and located in St. Louis and St. Charles Counties was attached. On October 14, 1918, Laughlin filed answer to the suit. In December, 1919, the cause was tried and resulted in a verdict in favor of the trust company and against Laughlin in the sum of $ 8,403.45. Thereafter on motion of Laughlin the trial court set aside this verdict and granted a new trial because of the giving of erroneous instructions to the jury. The trust company appealed to the Supreme Court from the order granting a new trial. The Supreme Court affirmed the action of the trial court in granting a new trial, and remanded the cause on the ground that Instructions 4 and 5, given at the request of the trust company either ignored or wholly misconceived the legal effect of Laughlin's defense that he endorsed the note as an accommodation to the trust company. [St. Louis Union Trust Company v. Laughlin, 254 S.W. 844, 846.] After the cause was remanded, and on October 26, 1923, Laughlin filed a motion to dissolve the attachment. The trial court made an order to the effect that the attachment would be dissolved unless the trust company, within seven days filed an attachment bond in...