Milton v. Missouri Dairy Company
| Decision Date | 05 April 1915 |
| Citation | 175 S.W. 105,188 Mo.App. 278 |
| Parties | HENRY S. MILTON, Respondent, v. MISSOURI DAIRY COMPANY and THE FRANKLIN ICE CREAM COMPANY, Appellants |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. Joseph A. Guthrie, Judge.
Judgment reversed and cause remanded.
McCune Harding, Brown & Murphy and R. B. Caldwell for appellants.
James M. Rader and E. A. Scholer for respondent.
This suit was on a petition in two counts, the first of which asked actual and punitive damages for false imprisonment, the second sought similar damages for malicious prosecution.
The suit grew out of the following facts: Plaintiff, Milton, and two others named Brown and Sebastian were employed at a barn maintained by defendant, the Missouri Dairy Company. At this barn the horses of both defendants were kept pursuant to an arrangement whereby the expense of feed for the horses was prorated between them in accordance with the number of horses maintained by each.
Some one reported to Chapman, the manager of the Dairy Company that feed was being stolen from the barn and sold. It was the duty of Milton, Brown and Sebastian every morning to load the barn refuse and manure into a wagon, which Sebastian would then haul to the city dump. Having learned that feed was being taken from the barn by being concealed in the wagon under the manure, those in charge of the business began to observe things a little more closely. On the evening of June 26, 1912, Curnett, the foreman at the barn, noticed that the manure wagon, standing in an enclosed passageway south of and adjoining the barn, was covered with horse blankets. Upon investigating, he found five sacks of oats under them. He reported it to Howard the man in charge of the first floor of the barn. They say they examined the oats and found them to be of good quality. When they reported this to Chapman, he directed them to watch the oats and see what became of them. They remained at the barn that night. About seven o'clock the next morning, Brown got up into the wagon, tied the sacks which were open and put them under the seat in the front end of the wagon. Milton and Brown then pitched manure into the wagon while Sebastian was on the wagon loading it. When the wagon was loaded the sacks were completely covered by the manure.
When the wagon was loaded there is a dispute as to what took place. Brown says Milton told him to go along with Sebastian and help sell the oats. Milton says Brown asked him if he could go for an airing and that he, Milton, told him he could if his work was finished. Brown left the barn but not on the wagon. Before the wagon left, Sam Proudfoot, an employee of the Dairy Company, came and Sebastian asked him to get on and go with him. Proudfoot says that when he hesitated, Milton suggested that he go, and said Proudfoot says he told Milton "You have a fat chance of getting out of here in the daytime," to which Milton replied, "Leave that to me, I have already got them," and that they had gotten oats before. Proudfoot says he didn't see any oats and did not think they had any. He got on the wagon with Sebastian, however, and went with him, Sebastian driving.
From the time Milton, Brown, and Sebastian began loading the wagon, Chapman, Curnett and Howard had been watching them, and when the wagon left, they secretly followed it. Instead of driving directly to the dump, Sebastian drove around a block or two until he was joined by Brown and then they went to the dump stopping on the way at a saloon. When the manure was unloaded at the dump the wagon was driven to the residence of a teamster by the name of Keller at Fourth and Gillis streets where they sold the oats, ten bushels, for four dollars, telling him that they were teamsters but had sold their horses and no longer had use for the feed. Keller examined the oats and found them of good quality. Keller had a five dollar bill but no change, and to make the change Proudfoot gave Keller a dollar and took the bill with the understanding that he would get the change and give Sebastian the four dollars on the way back.
At this moment the watchers appeared much to the surprise and consternation of the men, and Chapman seized the horses heads, as Sebastian was in the act of driving away, and demanded what they meant by selling his feed. He then ordered the men into the wagon and drove back to the barn. On reaching there, Chapman ordered them to come upstairs and as he passed Milton he told him to come up too. Milton asked "what's up." Chapman replied, "wait and see." Milton then followed them up. They all staid up there some time, but neither on the way from Keller's nor in the upstairs room did any of the men ask any explanation of why they were being kept there. Nor did plaintiff ask for any explanation on his part. After being in the upper room for some time, plaintiff went down to the basement to show some one, whom Chapman had directed to feed the horses, how the feeding should be done, and in a little while he was recalled to the room. There he found a policeman in waiting, and Milton and the two men, Brown and Sebastian, were pointed out to the officer and he took them in charge. Milton asked for no explanation of this treatment nor why he was arrested. The only request he made was to be allowed to change his clothes. He admits this, and the only reason he gives is that the Manager had told him to "wait and see" at the outset when he asked him "what's up." His request to change his clothes was refused and he was taken in an automobile by the officer along with the other men to the police station where they were searched, booked and locked up. Later in the day they were taken to the justice office where a warrant was issued. Afterward, plaintiff was tried on the charge of stealing the oats and acquitted.
Thereupon this suit was instituted. After a trial of the issues, the jury found a verdict for plaintiff on the first count for $ 1000 actual and one dollar punitive damages, and found for defendants on the second count.
Plaintiff admits that he knew the sacks were in the wagon; that he helped sack the oats; but at the justice trial and the trial of this case he contended that the oats were spoiled oats and that Asbury a former foreman, who had left the barn about two weeks before they were sold, had authorized them to sell the oats for whatever they could get, and the claim of all three men was that they were merely obeying these orders. And yet no claim of this kind was made at the time of the arrest nor, as stated, did he ask why he was being detained or arrested or offer any explanation to clear himself of any appearance of guilt. Milton admits that Sebastian gave him the four dollars obtained for the oats, but says it was given to him just before they started upstairs at the Dairy office to get the money due them for their wages after they had given bond, had been released and had gone to the barn and changed their clothes. When Chapman asked about the money for the oats, Milton gave it to him. Keller who bought the oats, and every man who examined them, swore they were good oats and not damp, rotten or sprouted as the men claimed they were. Proudfoot swore that he came to the barn shortly after Chapman reached there with the men from the place where the oats were sold, and that Milton said to him, "Well, Chapman got us." He also swore that at a meeting of the men a few days before the justice trial, Milton said it would be necessary for them to swear they had authority to sell the oats and wanted Proudfoot to testify to that effect which he declined to do. This testimony of Proudfoot's can have no force here since all of his testimony as well as many other suspicious and incriminating circumstances not mentioned herein are denied by Milton. But the facts which he does admit, the explanation he gives of their right to sell the oats, the failure to ask why he was being arrested or imprisoned, his neglect to offer any explanation of the damaging appearances against him are all so inconsistent with the conduct of an innocent man that it is not easy to see how the jury in this case could return a verdict in his favor for substantial actual and nominal punitive damages. We have studied the record, however, and find that there is...
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