Lukecart v. Swift & Co.

• Decision Date: 20 October 1964
• Docket Number: No. 51398,51398
• Citation: 256 Iowa 1268,130 N.W.2d 716
• Parties: Marshall LUKECART, Appellant, v. SWIFT & CO., Leonard Rumpf and Gene Kelly, Appellees.
• Court: Iowa Supreme Court

Page 716

130 N.W.2d 716

256 Iowa 1268

Marshall LUKECART, Appellant, v. SWIFT & CO., Leonard Rumpf and Gene Kelly, Appellees.

No. 51398.

Supreme Court of Iowa.

Oct. 20, 1964.

Pappas & Senneff, Mason City, for appellant.

Beck & Butler, Mason City, for appellees.

SNELL, Justice.

This is a law action for malicious prosecution. Plaintiff seeks actual and punitive damages. At the close of all the evidence the trial court directed a verdict for defendants. Plaintiff appeals.

Defendants in this action are Swift & Company, Leonard Rumpf, plant superintendent and Gene Kelly, plant supervisor of Swift's fertilizer plant at Mason City.

Prior to May 4, 1962 plaintiff had been employed at the Swift & Company fertilizer plant in Mason City. He had been so employed since 1955. His work was entirely satisfactory. At first he wheeled fertilizer bags on a hand truck. He soon became a 'checker' loading outgoing trucks and counting the bags loaded. Eventually he became a mechanic's helper and foreman of a three-man mixing crew. As such he operated a mixing machine. When so engaged he had nothing to do with loading bagged fertilizer. After he went on the mixing crew he did not work on the loading crew but on a few occasions loaded bulk trucks at night. Plaintiff's own testimony is indefinite but it appears that he had loaded customers' trucks with fertilizer, but only on specific orders of the superintendent. The trucks were loaded with the kind and amount of fertilizer indicated on an invoice or loading order from the main office. Except to load out pursuant thereto plaintiff had no authority in connection with the shipping orders.

It was the firm policy of the company and well known to employees that no truck was to be loaded without authority from the office. Sometimes during a rush period delivery of the written shipping order would be preceded by verbal directions from the office. Plaintiff claimed that he had, when the office was closed, loaded trucks without orders and had them sit in the yard and wait until the office opened to get a ticket but he had never done this after his own shift had terminated. Extensive investigation by the sheriff's office and testimony of plant employees completely failed to corroborate plaintiff's claim of loading trucks without an order. There was no testimony that defendants had known of any deviation from the company policy and rule against loading a truck without orders.

Office hours for the processing of written orders were not always coextensive with the hours of plant operation. Some years during the busy season the plant operated 24 hours per day. The plant was not so operating in 1962. In May 1962 there were two shipping crews and two mixing crews at the plant. The day shipping crew worked from 7 a. m. until 3:30 p. m. The night shift started at 3:30 p. m. and worked until midnight. The mixing crew day shift started at 7 a. m. and worked until 5 p. m. The night shift started at 5 p. m. and ended at 3 a. m. From 3 a. m. the plant was closed until reopened in the morning. A mechanic came on duty at 6 a. m. before the day shift workmen. No one claimed that any trucks had ever been loaded when the plant was closed.

On May 3, 1962 plaintiff was foreman of a maxing crew of three men starting work at 5 p. m. and expected to work until 3 a. m. May 4th. After about midnight there were no other people in the plant.

At about 2:15 a. m. on May 4th plaintiff shout down the mixing machine and sent his helpers home. Plaintiff said he did this because they ran out of acid used to blend the fertilizer. The lack of acid was not corroborated by anyone. The mechanic who checked the supply the next morning and before any change in the tank testified that the gauge glass showed enough acid to run an hour or hour and a half. This would have been more than enough to last beyond plaintiff's work shift.

Plaintiff testified that shortly after starting work on the afternoon of May 3rd he had a conversation with Lyle Severe, a trucker who frequently bought and hauled fertilizer from the plant. Plaintiff said that Mr. Severe told him he was going to get a load that night 'and to stick around and wait for him.' This statement is not corroborated by Mr. Severe. On direct examination testifying for plaintiff he said: 'Furing the day of May 3rd, 1962, I went to the Swift plant at about 5:30 in the afternoon and saw both Mr. Lukecart and Leonard Rumpf. I did not make any arrangements with Lukecart to pick up any fertilizer at that time. I had not made any arrangements with anyone to be there to load my truck or get the fertilizer.'

Mr. Severe testified that he had received a post card reading as follows:

'Authorized Swift Dealer:

'Effective Monday, April 23,

'our loading hours will be

'7:00 am to 11:00 pm Monday

'through Friday. Saturday

'loading hours will be 7:00 am

'to 2:00 pm effective Saturday,

'April 28. Any trucks in the

'yard by 2:00 pm on Saturdays

'will be loaded.

'Orders for loading after

'5:00 pm should be phoned into

'our office before 5:00 pm so

'shipping tickets can be written.

'We hope to give you the

'usual Swift service.

'SWIFT & COMPANY

'Mason City, Iowa

'PH: GArden 4-3876

'P.S. Keep this card handy

'for ready reference.'

After sending his helpers home about 2:15 a. m. plaintiff 'waited around for a while.' He then closed the plant, got in his car and drove away. He drove west on a public road to Federal Avenue, made a 'U' turn and drove back to the plant. He explains his return in these words: 'Then I thought maybe I should wait and see if Mr. Severe would show up so I drove back to the plant.' He went into the locker room and then came out and sat in his car.

From this point on it must be remembered that we are not considering the guilt or innocence of plaintiff in a criminal prosecution. We are considering whether there were reasonable grounds or probable cause for defendants' subsequent actions.

Plaintiff's work shift had ended. The plant was closed and the lights were out. As foreman of a mixing crew plaintiff had no duty to load trucks. There was neither loading order nor authority for anyone to load a truck with fertilizer at or after 3 a. m. Such a loading was contrary to well known company rules.

Mr. Severe testified that he drove his truck to the plant about 3:30 a. m. and backed up to the warehouse dock. After some conversation with plaintiff who had been waiting, Mr. Severe, plaintiff and an employee of Mr. Severe proceeded to load over thirteen tons of sacked fertilizer on the truck.

Mr. Severe, with his truck and helper, had been at the plant on the afternoon of May 3rd. The helper inquired of Gene Kelly, plant supervisor, how late the plant would run that night. Mr. Kelly replied 'twelve midnight.' The helper then said: 'I can't understand that, we are supposed to pick up a load at 3 o'clock in the morning.' After asking 'did you say three o'clock?' and the helper answering 'yes,' Mr. Kelly walked away in surprise. He told Mr. Rumpf what he had heard. Mr. Kelly and Mr. Rumpf agreed to watch the plant that night. Mr. Rumpf obtained permission to park their car in a yard about a block and a half from the Swift plant. From there they could see the plant.

Mr. Rumpf and Mr. Kelly waited at this vantage point from about 2 a. m. They heard the mixing mill shut down. They saw the plaintiff's two helpers leave the plant. They saw plaintiff's car leave and shortly return. They saw lights at the plant go on and off. They saw the truck enter the plant. They then walked to the plant office and called the sheriff. Mr. Rumpf, who made the call, indentified himself, said where he was, said there was a truck loading fertilizer without authority and asked that an investigating officer be sent at once. In response to this call deputy sheriff Jerry Koerber arrived shortly. Mr. Rumpf, Mr. Kelly and the deputy walked to the truck. Mr. Rumpf ordered the loading of fertilizer halted and the truck unloaded. The testimony of Mr. Rumpf then related the following:

'Q. * * * Now what did you say then to Mr. Lukecart? A. Mr. Lukecart jumped off the left truck and came back towards us.

'Q. What did he say, if anything, at that time? A. He said, what's wrong, what's wrong, what's wrong?

'Q. And what did you say? A. I said you know darn well what's wrong. I asked him if he had an order, shipping order to load this truck. He told me no. I said, to the best of my ability to recall this, I said Marshall, I am sorry this happened, it will never happen again, you are through as of right now.

'Q. Did Marshall say anything to you? A. Yes, afain he said we were just going to load him and get a shipping ticket in the morning. * * *

'Q. May I stop you for just a minute. The statement that you made then to Mr. Lukecart out on the dock, he understood that you were discharging him all right? A. He should have.

'Q. His subsequent actions, he was in and out, he was cleaning out his locker? A. I think he was, I can't say for sure. Mr. Koerber asked if we were going to prefer charges and I told him I would have to talk to my manager Mr. Smith and I picked up the phone and called him.

'Q. What did you say to Mr. Smith? A. I told Mr. Smith-- first I apologized for getting him out of bed--I then told him I was out at the plant and that Mr. Kelly was with me; that the deputy sheriff was with me, and that we had found Mr. Lukecart and Mr. Severe loading fertilizer onto Mr. Severe's truck; that we had stopped them. First of all I guess I told him they did not have a shipping order for this; that we stopped them from loading, and that I had fired Mr. Lukecart and that whatever action, I mean, action, I am talking about Swift & Company action, that was going to be taken in regards to fertilizer and Mr. Severe that would be up to Mr. Smith to handle, and I asked him, I told him, that the deputy sheriff had asked me if we were going to prefer charges.

'Q. And what did Mr. Smith say to you? A. He waid...