March v. Vandiver
| Decision Date | 01 June 1914 |
| Citation | 168 S.W. 824,181 Mo.App. 281 |
| Parties | JESSE I. MARCH, Respondent, v. D. V. VANDIVER, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Boone Circuit Court.--Hon. D. H. Harris, Judge.
AFFIRMED.
Judgment affirmed.
N. T Gentry for appellant.
Gillespie & Conley for respondent.
This is an action for malicious prosecution. It is founded upon the charge in the petition that defendant maliciously and without probable cause had plaintiff arrested and prosecuted for embezzlement. Plaintiff was acquitted of the crime, and thereupon brought this suit. The jury gave him a verdict of $ 1 actual and $ 1 punitive damages. Defendant has appealed alleging, as the sole ground of error, that his demurrer to the evidence should have been sustained.
The charge of embezzlement upon which plaintiff was arrested was based on the claim made by defendant Vandiver, that plaintiff, March, was defendant's agent to sell milk from defendant's dairy to various customers in Columbia and had collected from such customers various sums belonging to defendant and had converted them to his plaintiff's, own use, thereby embezzling same. The crucial fact involved in this charge was whether March sold milk for defendant as the latter's agent or whether March bought the milk from defendant at so much per gallon and peddled it out for himself to the customers. If the latter was the arrangement between them there could be no embezzlement. Undoubtedly the work of selling milk began under the latter arrangement as shown by the written contract entered into between them to that effect dated March 21, 1912. Defendant claimed that on the 25th of May, 1912, this written contract was changed by oral agreement whereby, after that date, March was to sell and deliver the milk for defendant as the latter's agent and receive, as pay for so doing, the sum of seven cents per gallon, and that the embezzlement occurred after that date. March denied this and claimed that there had been no change in the contract.
It seems that defendant was operating a farm on which was a dairy and a herd of dairy cows, and that March and he entered into the written contract above mentioned; that from the date of said contract, whether it was orally changed or not, plaintiff delivered milk from said dairy to customers in Columbia down to the evening of June 5, 1912, when plaintiff, without letting defendant know anything about it, had his wife to pack up their furniture and purchase three railroad tickets, and that night, under circumstances showing that plaintiff was trying to keep their departure secret, left for Pratt, Kansas. Before going, plaintiff collected various sums due from customers. He told various persons, who saw the preparations to leave, that his wife was going but he was not, and instead of boarding a train which made better connections, but which left Columbia in the afternoon, he waited and took a train making poor connection, but which left at nine that night, and boarded the train at a small, unfrequented, outlying, station instead of at the regular station in Columbia where the wife had purchased the tickets. There were other circumstances tending strongly to show that plaintiff desired his departure to be sudden, unexpected and unknown.
The next morning defendant noticing that plaintiff did not appear at the dairy as usual, and knowing that he was owing him for milk under the arrangement governed by the written contract and suspecting that something was wrong, went to Columbia and made inquiries among the customers. There he learned that plaintiff had made collections from numbers of them of whom he had denied making any collections when asked by defendant in reference thereto. Defendant also discovered that plaintiff had left secretly for Pratt, Kansas, the night before. He laid the facts before the prosecuting attorney, but did not tell the prosecuting attorney that March had hitherto borne a good reputation. He told the prosecuting attorney of the written contract and that it had been changed, as hereinbefore stated. Upon the facts given, the prosecuting attorney advised him that the crime of embezzlement had been committed. Defendant thereupon swore out a complaint and paid for and assisted the officers in sending a telegram to Pratt, Kansas, whereby the plaintiff was arrested and held.
Where it is claimed that a demurrer to the evidence should have been sustained, the appellate court cannot interfere if there is any substantial evidence to support the verdict. [Citizens Bank v. Lowder, 141 Mo. 603; Hobbs v. Williams, 162 S.W. 334.] In considering such demurrer the appellate court can only do so from the viewpoint of plaintiff's evidence. [Conway v. Metropolitan Street Ry., 161 Mo.App. 81, 142 S.W. 1101.]
The burden was on plaintiff to show affirmatively that defendant instituted the prosecution maliciously and without probable cause. [Callahan v. Kelso, 170 Mo.App. 338, 156 S.W. 716, l. c. 340 and cases cited.] Therefore, in order for defendant's demurrer to be efficacious now, the evidence must fail to establish either malice or want of probable cause. There was some evidence from which an inference of malice could be drawn, and the only ground upon which it can be claimed that the demurrer should have been sustained is that the evidence failed to show a want of probable cause, but, on the contrary, did show probable cause as a matter of law.
The question as to whether the evidence wholly failed to show a want of probable cause in this case comes down to the question whether or not the written contract was orally changed on May 25, as defendant claims it was. If it was not changed, plaintiff could not be guilty of embezzlement no matter how reprehensible his conduct may have been in not paying defendant for the milk he had bought of him.
Whether it was changed or not was a fact clearly within defendant's knowledge. As to this fact he could not have been misled by appearances. He laid the facts before the prosecuting attorney and told him the contract...
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