Marcum v. Sagehorn

• Decision Date: 25 October 1983
• Docket Number: No. 46295,46295
• Parties: Virgil MARCUM, Plaintiff-Appellant, v. Frank M. SAGEHORN and Sinclair Oil Company, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 426

660 S.W.2d 426

Virgil MARCUM, Plaintiff-Appellant, v. Frank M. SAGEHORN and Sinclair Oil Company, Defendant-Respondent.

No. 46295.

Missouri Court of Appeals,

Eastern District,

Division Two.

Oct. 25, 1983.

Harold G. Johnson, St. Ann, for plaintiff-appellant.

Lamar E. Ottsen, Clayton, Gerard Timothy Carmody, St. Louis, for defendant-respondent.

GAERTNER, Judge.

In this case seeking damages for alleged false arrest and malicious prosecution, we are called upon to determine the propriety of the granting of Motions for Directed Verdicts at the conclusion of plaintiff's opening statement.

The opening statement of plaintiff's attorney can be summarized as follows:

On December 23, 1975, defendant Frank Sagehorn operated a gasoline service station under a lease from defendant Sinclair Oil Company. On that date one of Sagehorn's employees cashed a $30 check which was signed by "Virgil Marcum." It was presented by Virgil Pryse Marcum, the son of plaintiff, who was, at the time of trial, in the penitentiary for writing other bad checks. When the check bounced, Sagehorn telephoned plaintiff and demanded payment. Plaintiff responded that he didn't owe Sagehorn any money and would not pay any money. Subsequently, Sagehorn again called the Marcum residence and was told by another of plaintiff's sons that his brother had written a lot of bad checks, that the brother no longer lived there and that his father had not written the check.

The next thing plaintiff knew about the incident occurred some four months later when a police officer appeared at his home with a warrant for his arrest. He told the officer that she was probably looking for his son. After the officer verified the information on the warrant regarding date of birth, height and weight, plaintiff was taken to the police station, booked and charged with stealing under $150, a misdemeanor. The criminal charge was subsequently dismissed after Sagehorn advised the prosecuting attorney of his inability to identify the person who wrote the check.

Plaintiff's attorney further advised the court and jury in his opening statement that he would produce the records of the prosecuting attorney showing that "a warrant [sic] was filed by Mr. Sagehorn" and that plaintiff's arrest was a result of "incorrect, inaccurate information on a warrant that was filed against him." He further promised to produce the "contracts, agreements, leases, dealer agreements and so forth" documenting what he claimed to be an agency relationship between Sinclair and Sagehorn. After advising the jury that this experience had affected plaintiff's employment on top secret projects at McDonnell-Douglas and that he was seeking compensatory and punitive damages, plaintiff's attorney concluded his opening statement.

Counsel for each defendant thereupon orally moved for dismissal of the case. A recess was declared and a discussion between the court and counsel ensued in chambers. Only portions of this discussion are on the record. Prior to a discussion "off the record," plaintiff's attorney is recorded as speaking only once, to correct the trial judge's mistaken impression that the prosecution was by Grand Jury indictment when it had been commenced by information wherein Sagehorn was the "complaining party." After the "off the record" discussion, the trial judge pronounced his conclusion that on the authority of Moad v. Pioneer Finance Co., "[e]ven assuming that Mr. Sagehorn came in and signed any document in the Prosecuting Attorney's office, the Court takes the position that the independent judgment of the Prosecuting Attorney's office, his discretion to proceed or not to proceed would eliminate any cause of action on the part of Mr. Marcum." Whereupon the trial judge directed verdicts in favor of both defendants.

Appellant here contends the trial court erred procedurally in directing the verdicts at the conclusion of opening statement and substantively in that his opening statement was sufficient to show a submissible case against each defendant. First the substantive question.

Plaintiff's petition was in two counts, one malicious prosecution, the other false arrest. In directing the verdicts, the trial judge expressed his reliance on Moad v. Pioneer Finance Co., 496 S.W.2d 794 (Mo.1973). This reliance was misplaced in two respects. First, Moad concerned malicious prosecution and was inapposite to the false arrest count. Secondly, as reflected by the judge's statement quoted above, he interpreted the filing of an information by the prosecuting attorney to be a total immunization of the complainant and an absolute bar to an action for malicious prosecution. Moad does not go so far.

"In determining whether proof of absence of probable cause was made by plaintiff, it is necessary to consider the manner in which the charge originated, because if the charge is initiated by indictment by a grand jury or by a prosecuting attorney on his sworn information and belief, either amounts to a prima facie showing that probable cause did exist for the prosecution. See Pinson v. Campbell, 124 Mo.App. 260, 101 S.W. 621, 624 (1907): "Malice and want of probable cause must coexist to warrant an action for malicious prosecution, and, where it is shown that the prosecutor consulted the prosecuting attorney in good faith, communicated to him all the ascertainable facts, and, acting on his advice, instituted the criminal proceeding, he should be exonerated. * * * The finding of an indictment by a grand jury, or the commitment of an examining magistrate, is prima facie evidence of probable cause. * * * On parity of reason, the filing of an information by a prosecuting attorney on his own information and belief is prima facie evidence of probable cause, but not so when the information is predicated on the affidavit of the complaining witness."

Moad v. Pioneer Finance Co., 496 S.W.2d at 798, 799.

In Moad a directed verdict at the close of plaintiff's case was affirmed where plaintiff's evidence clearly showed the Prosecuting Attorney executed a felony complaint based upon information furnished by a complaining witness plus his own independent investigation and there was no evidence that the basis for the charge was false.

This court, citing to Moad, succinctly stated the rule in Hamilton v. Krey Packing Co., 602 S.W.2d 879, 882 (Mo.App.1980). "The prima facie showing of the presence of probable cause is conclusive unless rebutted by evidence that 'false testimony was the basis of the charge and that the falsity, if so, was discoverable upon reasonable investigation'."

We acknowledge the principle that "[i]f a trial court reaches a correct result but for the wrong reason, the appellate court must nevertheless affirm." Scroggins v. State, 604 S.W.2d 699, 701 (Mo.App.1980). An examination of the opening statement here reveals the inadequacy of the recitation of facts to establish a cause of action against these defendants for either false arrest or malicious prosecution. As to the latter, as has been...