McKee v. Wilson

• Decision Date: 03 November 1925
• Docket Number: No. 18728.,18728.
• Citation: 277 S.W. 609
• Parties: McKEE et al. v. WILSON et al.
• Court: Missouri Court of Appeals

277 S.W. 609

McKEE et al. v. WILSON et al.

No. 18728.

St. Louis Court of Appeals. Missouri.

November 3, 1925.

Rehearing Denied November 20, 1925.

Appeal from Circuit Court, Clark County; N. M. Pettingill, Judge.

"Not to be officially published."

Action by Joe McKee and another against D. T. Wilson and others. Judgment for the plaintiffs, and defendants appeal. Reversed and remanded.

C. T. Llewellyn and J. A. Whiteside, both of Kahoka, and Hensley, Allen, Moore & Fitch, of St. Louis, for appellants.

Charles Hiller, of Kahoka, John M. Wood, of St. Louis, and T. L. Montgomery, of Kahoka, for respondents.

BENNICK, C.

This is an action for malicious prosecution instituted by plaintiffs against defendants as members of the board of education of consolidated school district No. 3 of Clark county. The petition was in two counts, upon both of which plaintiffs recovered; the verdict on the first count being for $500 and on the second count for $300. From the judgment entered thereon defendants have appealed.

The first count of the amended petition, upon which the cause was tried, alleges that the defendants, on May 4, 1921, filed in the circuit court of Clark county, Mo., a petition, wherein it was sought to condemn for a schoolhouse site approximately 4 acres of land owned by plaintiffs; that defendants pretended to be authorized to prosecute said condemnation suit by a vote of the majority of the qualified voters of said district at an election called and held for that purpose, when in truth and fact no such authority was given at the election so called and held; that thereafter the commissioners who had been appointed viewed the land sought to he condemned, and awarded as damages to plaintiffs the sum of $5,000; that the report of the commissioners was duly made out and signed and placed in the hands of defendants' attorney, Charles T. Llewellyn, but the same was never filed with the circuit clerk in compliance with law; that said condemnation suit pended until August 1, 1921, at which time defendants voluntarily dismissed it; that said suit was instituted and prosecuted by defendants unlawfully and maliciously, without authority of law, and without probable cause. Judgment was prayed for the sum of $1,000 actual damages and for $1,000 punitive damages.

The second count is in all material respects identical with the first, except it has to do with a suit filed by defendants on July 7, 1921, in which it was sought to condemn 10.25 acres of land belonging to plaintiffs. It is alleged that an award of $6,537.50 was made by the commissioners, and that on September 20, 1921, said suit was voluntarily dismissed by the defendants.

For their answer, defendants alleged that the two actions in condemnation were brought, after taking advice of counsel, on a full, fair, and correct statement of the facts to said counsel, and that said suits were instituted in good faith for the purpose of obtaining a schoolhouse site in said district, and wholly without malice, hatred or ill will towards plaintiffs. The reply was conventional.

The evidence disclosed that prior to March 20, 1920, a controversy had arisen among the taxpayers of several school districts over the question of a proposed merger into a consolidated district. Defendants were among those sponsoring the merger, while plaintiffs consistently opposed it. The feeling was bitter between the parties. Commencing with March 20, 1920, and continuing until June 25, 1921, nine separate school elections were held, at which propositions relating to such consolidation were submitted. At the election of April 6, 1920, there was submitted the proposition of the selection of approximately 4 acres of plaintiffs' land for a schoolhouse site. Plaintiffs, who were brothers, owned a tract of land embracing 78 acres adjoining the school tract. This proposal carried by a vote of 115 for and 72 against. Thereafter defendants attempted to purchase the desired 4 acres from plaintiffs. Meeting with no success, on May 4, 1921, a condemnation suit was filed in the circuit court of Clark county, and commissioners were appointed to appraise the land. The commissioners made an award of $5,-000, which was not accepted either by plaintiffs, who complained that the proposed site left their land with an irregular boundary, or by defendants, who regarded the award as being excessive, and instead, on August 1, 1921, voluntarily dismissed the condemnation suit.

At the election of June 25, 1921, the proposition of the selection of 10.25 acres of plaintiffs' land was submitted; the vote standing 196 for and 155 against. The larger tract was sought to be obtained (according to defendants) so that the boundaries of plaintiffs' land would be left in better shape. Again failing to agree with plaintiffs on the purchase price, a second condemnation suit was filed July 7, 1921. Commissioners were again appointed, and an award of $6,537.50 made. Defendants again declined to accept the award on the ground that it was excessive, and on September 20, 1921, voluntarily dismissed that suit. At the time these several elections were held it appeared that the land owned by the district as a schoolhouse site comprised 1.35 acres, and that the enrollment of the school was 155.

The evidence further disclosed that at about the time the report of the commissioners in the second condemnation suit was made defendants authorized Mr. L. R. Jacks, cashier of the Bank of Revere, to offer plaintiff Joe McKee the sum of $7,009 for the 10.-25 acres of land; that this offer was made to McKee by Jacks; that McKee was informed that the offer was made on the authority of defendants, and that same was refused.

Defendants' evidence was to the effect that Mr. C. T. Llewellyn had been attorney for the consolidated school district since its organization in 1920; that he was still their attorney at the time of the trial of this case; that he was consulted by the defendants relative to the several school elections and the conduct of both condemnation suits; that a fair, full, and complete statement of all the facts pertaining to such matters was given him in every instance by the defendants; that both condemnation suits were filed and dismissed upon his advice, and, in fact, by him personally as defendants' attorney; that both condemnation suits were brought for the benefit of the school and for no other purpose; and that defendants had no malice or ill feeling towards plaintiffs at any time. All of defendants denied that Mr. Jacks had ever been authorized by them to offer plaintiffs the sum of $7,000 for the 10.-25 acres of land, and in fact denied that any such matter had been discussed by them with him.

Defendants argue most earnestly that this case should be reversed for the reason that the petition wholly fails to state a cause of action for malicious prosecution. This contention is based upon the fact that in both counts of the petition, in attempting to state facts going to show want of authority on the part of defendants to institute the condemnation suits, it is alleged that the defendants pretended to be authorized to prosecute the suits by a vote of a majority of the qualified voters of the district at an election called for that purpose, when in truth and in fact no such authority was given at such election. It is urged that such allegation fails to state a cause of action, for the reason that under the law as it existed at the time the condemnation suits were instituted, and as it now stands, it was not necessary that any authority be given by a vote cast at an election in the district for that purpose; the board of education of a consolidated school district having the authority to select a schoolhouse site and to institute condemnation proceedings to obtain the land therefor.

We concede the force of defendants' argument in respect to the allegation in the petition that no authority had been given defendants to institute condemnation suits; butt there remains the allegation that said suits were instituted and prosecuted by defendants maliciously and without probable cause. There is no doubt that the petition would have been open to motions to strike or to make more definite and certain before answer, but we do not think there is a complete failure to state a cause of action therein so as to render it vulnerable after verdict, since the well-recognized rule is that a defectively stated cause of action is cured by verdict. Phillips v. East St. Louis & S. R. Co. (Mo. Sup.) 226 S. W. 863; Torrance v. Pryor (Mo. Sup.) 210 S. W. 430; Lange v. Anheuser-Busch Brewing Ass'n (Mo. App.) 241 S. W. 454; Bruns v. United Railways Co. (Mo. App.) 251 S. W. 760. The situation here, therefore, is very unlike that in the cases of ...