Muza v. Cash Bargain Lumber Co.
| Decision Date | 31 July 1979 |
| Docket Number | No. 29851,29851 |
| Parties | Larry M. MUZA et al., Appellants, v. CASH BARGAIN LUMBER COMPANY et al., Respondents. |
| Court | Missouri Court of Appeals |
Richard E. Duggan, Kansas City, for appellants.
Max W. Foust and G. Spencer Miller, Kansas City, for respondents.
Before SOMERVILLE, P. J., and PRITCHARD and MANFORD, JJ.
Suit for damages for malicious prosecution. At the close of plaintiff's evidence, trial court sustained defendants' motion for directed verdict. This appeal followed.
By virtue of the trial court's disposition of this cause, review of the evidence must be undertaken, and the court is required to review such evidence in a light most favorable to appellants' theory of the case, including any and all inferences to be drawn therefrom. Russell v. Russell, 540 S.W.2d 626 (Mo.App.1976).
Appellant Larry Muza was a subcontractor. Appellant Howard Thiele was a career soldier. The two met in Vietnam and a continued friendship between them and their families developed. Thiele was in town between military assignments, visited Muza and his family and accompanied Muza to respondents' store on September 15, 1975.
The evidence revealed Muza was a subcontractor for Atlas Construction Company. He was a regular customer in respondents' store and for about a year and one-half, would purchase materials and tools from respondent. As a common practice, Muza would charge these goods to Atlas. Atlas would pay respondent, and then later, adjust this cost between Atlas and Muza. The evidence further revealed such purchases amounted to something between $75,000.00 and $100,000.00 over this period. Cash Bargain Lumber Company had two co-managers in its store. One was Jim Cupp, the other, Rodney Farrington. Muza knew Cupp better than Farrington, and Cupp and Muza had a friendly relationship when Muza would enter the store.
On September 15, 1975, Muza and Thiele entered the respondent store. They needed lumber and hardware for use on a job site that particular day. Upon entry, Muza commented to Cupp, "What can I steal today?" Cupp responded by saying, "about anything you want to!" or words to that effect.
The evidence establishes that the various purchases to be made by Muza were in two different parts of the respondent store, by virtue of the nature of the goods. Hardware purchased was in one section and lumber materials in another.
During the course of purchasing hardware items, appellant stated he was shown (by Cupp) a tile-cutter tool and he decided to purchase it. Muza testified he told Cupp he would have the tile-cutter charged in the other section of the store. Muza and Thiele then proceeded to the other section of the store. The evidence is controverted at this point as to who carried the tile-cutter and whether it was placed on the counter in the other section of the store.
During all of this, the other co-manager, Rodney Farrington, was observing Muza and Thiele. The evidence is controverted as to whether Farrington observed the two continuously, but it appears somewhat clear that his observation of them was for the greater portion of the time.
The counter man for respondent wrote up a sales ticket, which Muza placed in his pocket. Thiele went outside with the tile-cutter and other items. He placed them in Muza's pickup truck. The evidence is controverted on the exact location within the truck as to whether the items could be seen. Thiele testified he placed the items in plain view and Farrington testified that when he went to the truck, the items could not be seen from the passenger's side.
Immediately following Farrington's going to the truck and returning with the tile-cutter, he confronted Muza and Thiele. He inquired if the tile-cutter was on the sales ticket and Muza said it was on it. A review of the ticket proved it was not listed. Muza then requested the item be included, but Farrington refused, advising Muza he was going to call the police.
Muza testified that before leaving the "yard" of the respondent company, he always had the sales ticket checked. Farrington testified he was not aware of this practice.
The police arrived and Muza and Thiele were arrested for "shoplifting". Disposition of the charges occurred some six weeks later, when after trial, Muza and Thiele were found not guilty in municipal court. This action followed.
Upon trial, appellants dismissed their claim against Farrington, proceeded against respondent corporation and called Farrington as a witness for the plaintiff. After the appellants rested their case, respondents moved for a directed verdict, which was granted. The trial court concluded the following in sustaining respondent's motion:
(a) Appellants failed to carry their burden of proof as to the absence of probable cause or reasonable grounds for instigating prosecution against appellants.
(b) Appellants failed to carry their burden of proof as to malice.
The trial court reached the above conclusion upon the premise there were no substantial or material facts in dispute to warrant submission of the issues to the jury.
A third, and somewhat unique feature of this case, surrounds the claim by respondent of a complete legal defense of reliance upon advice of counsel. The trial court agreed this was a complete defense under the facts of this case.
Evidence on this third point came from the testimony of Farrington. He stated after observing Muza and Thiele, he called his brother, a recently admitted attorney, and was advised by his brother to proceed to have Muza and Thiele arrested. Since this is a point raised on appeal, a more detailed consideration of the facts surrounding this point will be undertaken.
Appellants raise four points on appeal. Error is contended in sustaining the motion for directed verdict on the question of no probable cause for arrest and prosecution because the facts in evidence established a submissible case; that it was error to sustain a directed verdict on the issue of advice of counsel because of failure to disclose material facts to counsel; that it was error to have admitted hearsay evidence and that it was error for the trial court to refuse to permit appellants to submit evidence of respondents' conduct prior to and subsequent to the arrest of appellants.
The necessary elements embodied within a valid claim for malicious prosecution are:
(e) Presence of malice therein and
(f) Damage to plaintiff by reason thereof.
For a restatement of this criteria, see Palermo v. Cottom, 525 S.W.2d 758, 763 (Mo.App.1975).
On these six requisites, as interrelated with appellants' first alleged point of error, only two are of importance herein. The evidence is uncontroverted as to (a), (b), (c) and (f) referred to above. In addressing the remaining two elements, resolution of appellants' first point of error can be achieved.
The question of absence of probable cause and the presence of malice are at best difficult questions to determine. A brief reference to the facts is necessary to a proper review of the court's decision of no submissible issue.
On the question of probable cause, Farrington, of course, is the central figure. The issue to be resolved herein is whether the evidence, even though provided solely by the appellant, raised an issue to be submitted to the jury.
Farrington admitted in his testimony to overhearing Muza and Cupp discuss the charging of the tile-cutter to the Atlas account in another section of the store. In addition, evidence was controverted as to whether Thiele ever placed the tile-cutter on the sales counter for purposes of being included on the sales ticket. Thiele testified he had done so. Farrington testified he never observed the cutter on the counter. Appellant Thiele testified the tile-cutter could be easily viewed from outside the truck. Farrington testified to the contrary....
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Sanders v. Daniel Intern. Corp.
...341, 296 N.E.2d 825 (1973). See also Bonzo v. Kroger Grocery & Baking Co., 344 Mo. 127, 125 S.W.2d 75 (1939); Muza v. Cash Bargain Lumber Co., 586 S.W.2d 403, 406 (Mo.App.1979). The nature of this cause of action, therefore, has led courts to require strict proof of each element of the tort......