Randol v. Kline's Incorporated

• Citation: 18 S.W.2d 500
• Decision Date: 05 April 1929
• Docket Number: No. 27243.,27243.
• Parties: FANNIE L. RANDOL, Appellant, v. KLINE'S INCORPORATED, WALTER J. PACKWOOD and CHARLES R. LAMPING.
• Court: United States State Supreme Court of Missouri

18 S.W.2d 500

FANNIE L. RANDOL, Appellant, v. KLINE'S INCORPORATED, WALTER J. PACKWOOD and CHARLES R. LAMPING.

No. 27243.

Supreme Court of Missouri, Division No. 2.

April 5, 1929.

Appeal from Jackson Circuit Court. — Hon. O.A. Lucas, Judge.

REVERSED AND REMANDED.

Harry G. Kyle and Walter A. Raymond for appellant.

(1) Nature and requisites of an action for malicious prosecution. Hanser v. Bieber, 271 Mo. 326; Finley v. Refrig. Co., 99 Mo. 563; Vansickle v. Brown, 68 Mo. 634. (2) The court erred in refusing to submit the evidence of defendant's institution and prosecution of the criminal charge to the jury. Steppuhn v. Railroad, 204 S.W. 582; Rosendale v. Dry Goods Co., 213 S.W. 171. (3) The court erred in refusing to submit the evidence of probable cause to the jury. (a) Proof of probable cause requires proof of a negative on the part of the plaintiff and therefore slight proof only is required to make a case for the jury. Williams v. Vanmeter, 8 Mo. 339; Stubbs v. Mulholland, 168 Mo. 47; Brown v. Selfridge, 224 U.S. 189; Douglas v. Kenney, 40 Ida. 412. (b) The defendants are charged with notice of what they knew or could reasonably have ascertained. Stubbs v. Mulholland, 168 Mo. 47; Steppuhn v. Railroad, 199 Mo. App. 571; Rosendale v. Dry Goods Co., 213 S.W. 169; Carp v. Ins. Co., 203 Mo. 295; Hanser v. Bieber, 271 Mo. 326. (c) The court erred in refusing to submit the evidence of fraud, coercion and duress in obtaining the confession, to the jury. Austine v. People, 51 Ill. 236; Coffey v. State, 25 Fla. 501; DeArmond v. St. Amant, 40 La. Ann. 357; State v. Hunter, 181 Mo. 316. (d) The police court conviction reversed on appeal could be no more than prima-facie evidence of probable cause, which was overcome by evidence of fraud, false testimony and improper method in the procurement. Hanser v. Bieber, 271 Mo. 326; Sharpe v. Johnston, 76 Mo. 660; Steppuhn v. Ry. Co., 199 Mo. App. 571; Kennedy v. Burbridge, 5 A.L.R. 1686; Carpenter v. Silbey, 15 L.R.A. (N.S.) 1143. (e) The court erred in not submitting the question of defendant's belief in plaintiff's guilt to the jury. Hanser v. Bieber, 271 Mo. 326; Steppuhn v. Railroad, 199 Mo. App. 571; Stewart v. Sunneborn, 98 U.S. 187; Carp v. Queen Ins. Co., 230 Mo. 295; Macdonald v. Schroeder, 6 L.R.A. (N.S.) 703. (4) The court erred in not submitting the evidence of defendant's malice to the jury. Dwyer v. Transit Co., 108 Mo. App. 152; Stubbs v. Mulholland, 168 Mo. 47; Irons v. Am. Ry. Express, 300 S.W. 283.

Salkey & Jones and Russell Field for respondent.

(1) An indispensable element of an action for the malicious prosecution either of a criminal or civil action is want of probable cause. 38 C.J. 398; Vansickle v. Brown, 68 Mo. 627; Riney v. Vanlandingham, 9 Mo. 816; Frissell v. Relfe, 9 Mo. 859; Alexander v. Harrison, 38 Mo. 258; Moore v. Sauborin, 42 Mo. 490; Moody v. Deutsch, 85 Mo. 237; McGarry v. Mo. Pac. Ry. Co., 36 Mo. App. 340; Witascheck v. Glass, 46 Mo. App. 209; Christian v. Hanna, 58 Mo. App. 37; Jordan v. C. & A. Ry. Co., 105 Mo. App. 446; Stubbs v. Mulholland, 168 Mo. 47; McDonald v. Grocery Co., 184 Mo. App. 432; De Witt v. Syfon, 202 Mo. App. 469; Wells v. Surety Co., 194 Mo. App. 389; Sharpe v. Johnston, 76 Mo. 660; Smith v. Glynn, 183 S.W. 681; McKee v. Wilson, 277 S.W. 609; Pinson v. Campbell, 124 Mo. App. 260; Meysenberg v. Engelke, 18 Mo. App. 347. (2) A conviction of the accused, even though reversed on appeal, is such evidence of probable cause for the prosecution as can be rebutted only by proof of fraud, false testimony, corruption or unfair means in its procurement. Wilcox v. Gilmore, 8 S.W. (2d) 962; Wilkerson v. McGhee, 265 Mo. 574; Boogher v. Hough, 99 Mo. 183; Peck v. Chouteau, 91 Mo. 149; Firer v. Lowery, 59 Mo. App. 92; Crescent City Co. v. Butchers' Union, 120 U.S. 141; Payson v. Caswell, 22 Me. 212; Morrow v. Mfg. Co., 165 Mass. 349; Adams v. Bicknell, 126 Ind. 210; Buhner v. Reusse, 144 Minn. 450; Fones v. Murdock, 80 Ore. 340; Topolewski v. Packing Co., 143 Wis. 52; Schnider v. Montross, 158 Mich. 263; Smith v. Parman, 102 Kan. 787; Saunders v. Baldwin, 112 Va. 431; Haddad v. Ry. Co., 77 W. Va. 710; Francisco v. Schmeelk, 141 N.Y. Supp. 402; Phillips v. Kalamazoo, 53 Mich. 33; Blucher v. Zonker, 19 Ind. App. 615; McElroy v. Catholic Press Co., 254 Ill. 290; Carpenter v. Sibley, 15 Cal. App. 589; Duerr v. Bridge Co., 132 Ky. 228; Hartshorne v. Smith, 104 Ga. 235. (3) The appellant has shown no such proof of fraud, false testimony, corruption or unfair means in the procurement of the conviction in the municipal court. Wilcox v. Gilmore, 8 S.W. (2d) 961; Firer v. Lowery, 59 Mo. App. 92; Randleman v. Boeres, 270 Pac. 376; Topolewski v. Packing Co., 143 Wis. 52; Ricketts v. J.G. McCrory Co., 138 Va. 548. (4) Probable cause consists of a belief in the charge or facts alleged, based on sufficient circumstances to reasonably induce such belief in a person of ordinary prudence in the same situation. Wilcox v. Gilmore, 8 S.W. (2d) 961; Boeger v. Langenberg, 97 Mo. 396; Sharpe v. Johnston, 76 Mo. 660; Nolen v. Kaufman, 70 Mo. App. 651; Vansickle v. Brown, 68 Mo. 627; Sparling v. Conway, 75 Mo. 510. The court was justified in holding, as a matter of law, that probable cause existed from the facts in the case at bar. Christian v. Hanna, 58 Mo. App. 37; Nolen v. Kaufman, 70 Mo. App. 651; McCauley v. Starr, 186 N.Y. Supp. 197; Lee v. Levison, 173 Cal. 166; Walker v. Smay, 108 Kan. 496; O'Malley-Kelley Co. v. Gates Co., 73 Colo. 140; Franks v. Heck & Co., 179 Ky. 276; Brown v. Selfridge, 224 U.S. 189; 38 C.J. 501 et seq. (5) An essential element of an action for malicious prosecution is that the original action terminated in favor of the plaintiff. 38 C.J. 386; Becke v. Forsee, 199 S.W. 734; Hanser v. Bieber, 271 Mo. 326. (6) The Circuit Court of Jackson County having no jurisdiction to entertain the appeal from the municipal court of Kansas City the appellant has failed to show that the original action terminated in her favor. (a) Charters adopted pursuant to the Constitution become the governing laws of the municipalities. Mo. Constitution, art. 9, sec. 16; State ex rel. Kansas City v. Field, 99 Mo. 355; Kansas City v. Oil Co., 140 Mo. 458; McGhee v. Walsh, 249 Mo. 266; Kansas City v. Field, 270 Mo. 500. (b) The Kansas City Charter alone regulates Kansas City municipal courts and appeals from their judgments. Charter, Kansas City (1908), art. 4, sec. 10; Stevens v. Kansas City, 146 Mo. 460; Kansas City v. Stegmiller, 151 Mo. 204; State ex rel. v. Clayton, 226 Mo. 302. (c) The 1921 Act of the Legislature (Laws 1921, p. 220) does not affect appeals from judgments of the municipal courts of Kansas City. Mo. Const., art. 9, secs. 7, 16 and 17; Art. 4, sec. 28; Sec. 53, subheads 4, 32, 33; and Sec. 54; Kansas City ex rel. v. Scarritt, 127 Mo. 651. (d) This action in the Municipal court was a civil action for the enforcement of a penalty, and not a criminal action. St. Louis v. Knox, 74 Mo. 79; Canton v. McDaniel, 188 Mo. 207.

DAVIS, C.

This is an action to recover damages for malicious prosecution, the petition praying $50,000 actual and $50,000 punitive damages. At the close of plaintiff's evidence, the court gave a peremptory instruction to find for defendant, and plaintiff suffered and took an involuntary nonsuit with leave to set the same aside. Within four days, plaintiff filed her motion to set aside the nonsuit so taken, which the court overruled, and plaintiff appealed from the judgment entered on the ruling.

The facts submitted warrant the finding that plaintiff, thirty-eight years of age, was born in Newton County, and reared there, and attended the High School at Neosho and the State Normal Institute at Joplin. Thereafter she taught school for six years. She then married, and with her husband moved to Kansas City about thirteen years previous to her arrest and prosecution. Subsequently she worked as a saleswoman in five or six stores, among which was that of defendant corporation and the Jones Store, at which latter place she was in charge of the fur department. Later, as a partner, she was engaged, with her husband and a Mr. Love, in the operation of a retail ice business in Kansas City, and was so engaged at the time of her arrest and prosecution. The business was conducted from her home, and plaintiff kept the books, attended the telephone, collected and banked money and purchased equipment. For seven or eight years she had taught a Sunday School class in the Hyde Park Christian Church. The record is without a scintilla of evidence denying her prior good reputation, but on the contrary it is shown to be good.

The defendant corporation, at the time of plaintiff's arrest, was operating a department store in Kansas City, consisting of five floors, which extended from Walnut to Main Street. Defendant Packwood was the manager thereof, and defendant Lamping the office manager. On June 16, 1923, plaintiff was arrested and listed for prosecution in the Kansas City police court. She left home that morning, about eight-thirty A.M., with the intention of exchanging a brassiere, which she had previously purchased from defendant corporation, as well as to shop and to collect an account. She intended to visit at ten A.M. the office of an attorney, who was in charge of a composition for a client indebted to plaintiff. On her way to town plaintiff noted on an envelope certain items of intended purchases, which were "colored shoes, bias binding, tea strainer, hose, gloves, thread and Taylor's lunch cloths." It was raining as well as cool, and plaintiff wore a cape and carried an umbrella. The house detective, who later arrested plaintiff, wore a jacket. Plaintiff arrived at the entrance to the store about five minutes before nine, before the store opened for business. There was a lobby in front of the entrance to the store, twenty-five or thirty feet deep, extending from the sidewalk to the door. In the center of the lobby was an...