McMahon v. May Dept. Stores Co., 49938

• Citation: 374 S.W.2d 82
• Decision Date: 09 December 1963
• Docket Number: No. 49938,No. 1,49938,1
• Parties: Thomas W. McMAHON, Jr., Plaintiff-Appellant, v. The MAY DEPARTMENT STORES COMPANY, Defendant-Respondent
• Court: United States State Supreme Court of Missouri

Page 82

374 S.W.2d 82

Thomas W. McMAHON, Jr., Plaintiff-Appellant, v. The MAY DEPARTMENT STORES COMPANY, Defendant-Respondent.

No. 49938.

Supreme Court of Missouri, Division No. 1.

Dec. 9, 1963.

Rehearing Denied Jan. 13, 1964.

Edward O. Hancock, St. Louis, for appellant.

George E. Lee, St. Louis, Carter, Bull, Baer, Presberg, Lee & Stanard, St. Louis, of counsel, for respondent.

ROBERT R. WELBORN, Commissioner.

This lawsuit arose out of a default judgment obtained by The May Department Stores Company against appellant Thomas W. McMahon, Jr. and a garnishment issued in aid of execution upon such judgment. The judgment in the original action was for merchandise sold by Famous-Barr Company, the name under which May does business in St. Louis, to the appellant's former wife subsequent to their divorce. The petition in the present case is in three counts. In Count I appellant sought to set aside the default judgment on the grounds that it had been procured through a fraudulent return of service made by an employee of respondent. In Count II he asked $5,000 actual and $25,000 punitive damages alleged to have been suffered 'by reason of defendant by its attorneys, agents and employees making, aiding and abetting a false return and obtaining said judgment.' In Count III he sought the same amount of damages for the action of respondent in 'wrongfully ordering garnishment proceedings in an effort to collect the judgment based upon said false return.'

Count I was tried by the court which found the issues against the appellant. Finding that Counts II and III were dependent upon appellant's prevailing in Count I, the court entered judgment against the appellant on all three counts. This appeal is from such judgment. In view of the amounts sued for, we have jurisdiction of the appeal.

Appellant and his wife Marion opened a charge account at Famous-Barr Company in October, 1956. At that time they resided at 1521 Oriole Lane in St. Louis. In May, 1958, they moved to 8610-a Frost Avenue in Berkeley, St. Louis County. One charge plate issued in connection with the account in the name of Mrs. Tom W. McMahon.

In May, 1959, appellant and his wife separated and he moved to his parents' residence at 7828 Stanford in University City. Marion continued to live at 8610-a Frost until sometime in March, 1961. On June 2, 1959, she filed suit for divorce in the St. Louis County Circuit Court. Near that date a statement was received by appellant from Famous-Barr showing $43.44 owed on the account as of May 17, 1959. Appellant asked his father to pay Famous-Barr this amount on his behalf and he did by check dated June 8, 1959. According to appellant's father, he told the person to whom he gave the check that 'the account was closed as of this date.' Appellant stated he also addressed a letter to Famous-Barr stating that the account was closed, that he and his wife were separated and that he would pay no more on it. Such letter was not found in Famous-Barr's files. Appellant also said that he told his wife the account was closed and that she would get in trouble if she should attempt to use it. However, he made no effort to obtain the charge plate from her.

A divorce was granted Marion on January 28, 1960. Between the time of the separation and the divorce the Famous-Barr account had been inactive. However, beginning in January, 1960, Marion began to make purchases which were charged to the account. The charge plate was used and she signed the charge slips for the purchases, 'Mrs. T. W. McMahon.' As the balance due on the account increased without payment being made, employees in the credit department of Famous-Barr made efforts to obtain payment. Various form letters concerning the account were sent. On June 2, 1960, Mrs. McMahon told an employee of Famous-Barr in a telephone conversation that she had been in the hospital for a week and had been unable to get the bill straightened up. She stated that she would send a check next week. Between May 17 and July 17, payments of $30.00 were made on the account. When no further payment was received, additional letters were sent to the Frost Avenue address. To whom the letters were addressed does not appear. In November, 1960, the account was turned over to Mr. Frank, an attorney employed by Famous-Barr.

Famous-Barr's records showed that, in a telephone conversation on November 17, 1960, Mrs. McMahon informed Gertrude Niehoff, a telephone collection clerk employed by Famous-Barr, that she was divorced, that she was responsible for payment of the account and would pay the bill. She also stated that she would return the charge plate. However, no payments were made and, on December 15, 1960, Frank filed suit on behalf of respondent against Thomas W. McMahon, Jr. and Mrs. Tom W. (Marion) McMahon, Jr. for $184.26, the balance due on the account as of November 17, 1960. The petition filed in the Second District Magistrate Court for St. Louis County showed the address of defendants as 8610-a Frost Avenue, Berkeley. Summons issued January 5, 1961, returnable February 3, 1961, and was placed in the hands of a deputy constable. After making three or four visits to the Frost Avenue address and finding no one there and after being informed by someone in the building that the McMahons had moved, the constable made a 'not found' return. On March 7, 1961, a telephone call by a Famous-Barr employee located Mrs. McMahon at the Frost address. This information was conveyed to Frank and, on March 10, an alias special summons, returnable April 7, 1961, was issued by the clerk of the magistrate court. Summons was directed to 'Special Process Server M. Rau', an employee of Famous-Barr, who was at that time an outside collection man. One of his duties was acting as special process server when called upon. During March, 1961, he served fifteen summonses in St. Louis and St. Louis County in actions by Famous-Barr.

Rau made some unavailing trips to the Frost Avenue address. He returned on Saturday, March 18, at a time which he placed at sometime in the afternoon, and knocked on the door at 8610-a Frost. According to him, a man came to the door and Rau said, 'Tom W. McMahon, Jr?' and the man said, 'Yes.' Rau told him he had a summons for him and handed him two copies, one for himself and one for his wife. While he was doing so, Rau saw a woman in the apartment whom he identified as Mrs. McMahon. He noted that she was pregnant and he remarked about preparations apparently under way by the occupants to move. According to Rau, no other conversation passed and he returned to his automobile and made a note of the fact that service had been made. On April 4, 1961, he signed the return, showing service of the summons by delivery of a copy to appellant and leaving a copy for Mrs. McMahon with her husband at her husband's abode. The return was prepared by Frank and signed and sworn to by Rau before Woodrow Whitlow, a notary public and credit manager for Famous-Barr.

As will be more fully discussed below, appellant strenuously denies that he was the person served by Rau. On the basis of Rau's return and in the absence of any appearance by the McMahons, a default judgment was entered on behalf of respondent in the magistrate court on April 7, 1961, in the amount of $184.26 and costs.

Around the end of March, 1961, Mrs. McMahon, who had by then remarried to a man named Whitehurst, moved from the apartment at 8610-a Frost. After the judgment had been recovered, efforts were made by the Famous-Barr credit department to locate the McMahons. Apparently a letter of some sort was addressed to appellant, on April 14, 1961, at McDonnell Aircraft Corporation where he was then working. However, a notation in the records on April 21 states 'not at McDonnell Aircraft.' A telephone call to a former neighbor at the Frost Avenue address provided the information that Mrs. McMahon had moved to Florissant and might be located there under the name of Whitehurst.

In May, an employee of Famous-Barr called the appellant's mother, Mrs. Gladys McMahon, with whom appellant was living at the Stanford Avenue address. Mrs. McMahon's name had been given as that of appellant's nearest relative in the credit application made in 1956 and her address was the same as at that time. The caller told appellant's mother about the account. She informed the caller that appellant and his former wife were divorced. Word was left for appellant to call a Mrs. Ploesser at Famous-Barr. On May 15, 1961, appellant did so and told Mrs. Ploesser that he was divorced in 1960, that he paid the balance due on the bill at that time and was not thereafter responsible for the account. He also told her that a letter had been written asking that the account be closed. According to appellant, Mrs. Ploesser did not tell him that judgment had been taken on the account. Mrs. Ploesser stated that she did not know of the judgment at that time.

Subsequent calls located Marion. According to Famous-Barr records, they were informed that Marion had been married to Kenneth Whitehurst for several months and that she was just home from the hospital with a new baby. On May 29, a Famous-Barr employee talked to Marion, then living at 1705 Fenmore in Florissant. She told the person calling her that she had no intention of paying the bill and that she was just home from the hospital with a new baby.

The record is silent as to further activity until June 7 when Frank filed a memorandum in the magistrate court requesting the issuance of execution, with garnishment summons, directed to McDonnell Aircraft Corporation, garnishee of appellant. Execution and summons of garnishee were issued and summons served on McDonnell on June 16. After the summons had been served, appellant, who was employed as an engineer at McDonnell, was called to the personnel office by Mr. Ker. According to appellant, at that time he first learned of the suit and judgment. He explained to Mr. Ker that the indebtedness...