Palermo v. Cottom

Decision Date20 May 1975
Docket NumberNo. 35545,35545
Citation525 S.W.2d 758
PartiesLouis PALERMO, Plaintiff-Respondent, v. Mel COTTOM et al., Defendants, Lawrence Perry and Roger Links, Defendants-Appellants. . Louis District, Division One
CourtMissouri Court of Appeals

John T. Sluggett, III, Clayton, for defendants-appellants.

Shaw & Howlett, Joseph Howlett, Terry Flanagan, Clayton, for plaintiff-respondent.


Defendants Perry and Links appeal from judgment in a malicious prosecution action awarding $1,000 actual damages against defendants jointly and punitive damages of $2,000 against Perry and $100 against Links.

Defendants contend the court erred: (1) in refusing to direct a defendants' verdict on plaintiff's failure to make a submissible case; (2) in failing to declare a mistrial following plaintiff's injection of prejudicial, non-responsive testimony; and (3) by its failure to grant a mistrial after making certain comments indicating the court's partiality, irritability and impatience.

Plaintiff claims defendants maliciously instigated a criminal charge against him of willful and unlawful interference with police officers while in performance of their official duties. Defendant Perry executed an affidavit relative to this charge which led to the information and criminal proceedings against Palermo (plaintiff-respondent here) in the Magistrate Court of St. Louis County. That case ended in mistrial when the jury failed to agree upon a verdict and was dismissed by the prosecutor's office.

'Actions for malicious prosecution are not favorites of the law . . . Among the reasons assigned therefor is a sound public policy under which the public's interest in peace and good order exact of an individual citizen for the benefit of the public at large certain requirements that citizens be not deterred by a fear of unpredictable consequences from a bona fide resort to the duly constituted authorities and tribunals for the vindication of the interests of society in matters of public justice.' Bonzo v. Kroger Grocery & Baking Co., 344 Mo. 127, 125 S.W.2d 75, 79 (Mo.1939). However, the disfavor with which the action is viewed on policy grounds requires only a strict construction of the elements of the cause and does not work a destruction of the tort. The disgrace and impairment of reputation of the victim of malicious prosecution is just as serious to him as it is to one who suffers the disgrace of defamation, and a petition with just grounds will be heard. Randol v. Kline's, Inc., 330 Mo. 343, 49 S.W.2d 112, 119 (1932). It is important to note that defendants in the present action do not enjoy immunity on the grounds of their positions as police officers. Motley v. Dugan, 191 S.W.2d 979, 982 (Mo.App.1945).

We consider first appellants' contention that plaintiff failed to make a submissible case and the trial court erred in failing to direct a verdict at the close of the evidence. As a general rule, where there are disputed facts, such that finding them in favor of plaintiff would sustain his cause, it is error for the trial court to direct a verdict against him. Pinson v. Campbell, 124 Mo.App. 260, 101 S.W. 621 (1907). The evidence is viewed in the light most favorable to plaintiff, Huffstutler v. Coates, 335 S.W.2d 70 (Mo.1960), with the benefit of all reasonable inferences that may be drawn in his favor, McFarland v. Union Finance Co., 471 S.W.2d 497, 499 (Mo.App.1971), and defendants' evidence unfavorable to plaintiff will be disregarded. Hughes v. Aetna Ins. Co., 261 S.W.2d 942, 945 (Mo.1953).

Plaintiff's testimony shows that on the evening of February 28, 1967, he made a business call at a tavern as part of his duties as district manager for Anheuser-Busch Brewery, and during the evening drank five 'beers'. He then drove to the Rite-Way Diner located in the Village of Marlborough, St. Louis County, and while driving from the tavern to the diner encountered no other automobile. After dinner at the Rite-Way he went to his car in the parking lot and defendant Perry, an officer of the Marlborough police force, approached and asked to see his driver's license. Plaintiff reached into his car to get his billfold and inadvertently picked up one of two billfolds which contained an athletic commissioner's badge. Defendant Perry asked what the badge was and plaintiff told him. After the billfold was handed to Perry, plaintiff testified that Perry said 'You're another one of those smart Dagos', and when asked again about this matter on direct examination, plaintiff testified that Perry called him a 'Dago bastard'. Plaintiff asked Perry why he was being interrogated and Perry advised there had been a complaint that while driving he had forced a car with two women off the highway. According to plaintiff he replied 'You must be out of your mind, you saw me come out of the diner, just finished eating dinner.' Then officer Perry placed him under arrest. At that time Perry called for assistance (apparently on his car radio) and shortly three other patrol cars arrived with officers of the Marlborough police force, including Chief of Police Mel Cottom 1 and defendant Roger Links. Some of the officers, including Chief Cottom, were in plain clothes and others uniformed. On the arrival of reinforcements plaintiff said 'What in the hell is going on'; Chief Cottom showed his badge and said he was under arrest. Plaintiff took out a pencil to write down Cottom's badge number and as he did so, an unidentified officer grabbed his arm and in the process was 'stuck' by plaintiff's pencil. The officer's hand was slightly pierced by the end of the pencil. Immediately plaintiff was picked up by defendants Perry and Links who held both hands behind his back. The pressure was painful and he kept saying 'Leave me alone' and 'kept yelling for help'. At that time he was struck in the left eye 2 by one of the officers and to keep him from yelling someone put a hand over his mouth. As plaintiff described it, he was struck by an officer, 'Then politely someone commenced to put their hand over my mouth to keep me from shouting' and 'I bit him'. Plaintiff believed this was officer Links though defendants testified that officer Perry put his hand over plaintiff's mouth and was bitten. Plaintiff was handcuffed, placed in the police car, taken to Marlborough City Hall by defendants Links, Perry and Cottom, thence to the St. Louis County Hospital for treatment of his eye and finally to the County Jail in Clayton where he was booked, made bond and released.

Plaintiff testified that as a result of his treatment by the defendants his clothes were torn, he was bruised and his back injured, causing three days absence from work. He further testified that he never failed to follow directions given to him by the police officers during the altercation and though he admitted biting the officer's hand, he denied breaking the skin. Defendant Perry testified his hand was bleeding, had several puncture marks and went to the hospital to get 'a tetanus shot for it'.

Plaintiff's next witness, defendant Links, testified that while acting in his capacity as police officer he responded to the assistance call from officer Perry and arriving at the scene he found the plaintiff screaming, 'calling names', 'generally hollering', and Links attempted with little success to calm him. Links then assisted Perry in handcuffing plaintiff. Perry's testimony, and that of his witnesses, contradicts Palermo in most particulars.

Four days after the arrest, defendants Links and Perry appeared at the office of the St. Louis County Circuit Attorney where Perry signed an affidavit prepared by an assistant prosecutor leading to the criminal charges against Palermo (plaintiff-respondent here). Defendant Cottom, called as a witness by plaintiff, testified he had nothing to do with the issuance of the information in the criminal case and his motion for directed verdict at the close of plaintiff's case was sustained. No appeal is taken from that judgment of the trial court.

The elements of a cause for malicious prosecution are: (1) commencement of prosecution of the proceedings against the present plaintiff; (2) its legal causation by the present defendant; (3) its termination in favor of the present plaintiff; (4) absence of probable cause for such proceedings; (5) the presence of malice therein; (6) damage to plaintiff by reason thereof. McFarland v. Union Finance Co., supra, 471 S.W.2d at 499; Hoene v. Assn. Dry Goods Corp., 487 S.W.2d 479, 483 (Mo.1972). Of these six elements defendants challenge the sufficiency of plaintiff's proof as to the second, third, fourth and fifth elements.

A person's acts may be the legal cause of prosecution if instituted at his insistence and request. It is sufficient if his action takes the form of an affidavit on which the case is based, regardless of further participation in the prosecution. Ruth v. St. Louis Transit Co., 98 Mo.App. 1, 71 S.W. 1055 (1903); 52 Am.Jur.2d, Malicious Prosecution, § 24. To impose liability there must be affirmative action by way of advice, encouragement, pressure or something similar in the institution, or causing the institution of the prosecution. Coffman v. Shell Petroleum Co., 228 Mo.App. 727, 71 S.W.2d 97, 103 (1934). Mere giving of honest assistance and information which leads to a prosecution does not necessarily render a person liable as an instigator of that prosecution, Pride v. Lamberg, 366 S.W.2d 441 (Mo.1963), Hunter v. Karchmer, 285 S.W.2d 918 (Mo.App.1955), although he may be liable for giving false information to the person prosecuting. 54 C.J.S. Malicious Prosecution, §§ 13--15. See LaFont v. Richardson, 119 S.W.2d 25, 29 (Mo.App.1938).

With respect to defendant Links' activities following the arrest, there is no evidence he did anything other than accompany Perry to the prosecutor's office and, under mandate of...

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