Sanders v. Daniel Intern. Corp.

• Decision Date: 18 December 1984
• Docket Number: No. 65529,65529
• Parties: Robert A. SANDERS, Respondent, v. DANIEL INTERNATIONAL CORPORATION, Appellant.
• Court: Missouri Supreme Court

Page 803

682 S.W.2d 803

Robert A. SANDERS, Respondent, v. DANIEL INTERNATIONAL CORPORATION, Appellant.

No. 65529.

Supreme Court of Missouri,

En Banc.

Dec. 18, 1984.

John E. Burruss, Jr., J. Kent Lowry, Jefferson City, for appellant.

Richard G. Callahan, Charles R. Miller, Jefferson City, for respondent.

WELLIVER, Judge.

This case involves a malicious prosecution action brought by respondent, Robert A. Sanders. At trial, the jury returned a verdict in favor of respondent, awarding him $100,000 in actual damages and $250,000 in punitive damages. We ordered the cause transferred after the Southern District affirmed the judgment. We reverse and remand.

The criminal prosecution forming the basis for this malicious prosecution action was a misdemeanor case in which respondent was charged with the attempted theft of tools and gauges valued over fifty dollars. Respondent was one of seven persons charged with that crime. The information was sworn to by the prosecutor following a conversation in his office with agents of appellant, Daniel International Corporation. The prosecutor dismissed the misdemeanor action because he believed that insufficient evidence existed to proceed with the trial. Respondent then filed this action for malicious prosecution.

I

At the time the information was filed, appellant was engaged in the construction of a nuclear power plan in Callaway County, Missouri for Union Electric Company. The construction project required more than 2,700 workers, and the company had crews working day and night shifts. Union Electric owned all the tools used on the job, and pursuant to a contract appellant was responsible for and controlled the purchase, allocation and use of all the tools. The individual workers did not bring their own tools onto the job site. Appellant issued individual tool boxes to each worker, and the workers were allowed to keep their tool boxes in larger "gang boxes" assigned to each crew. The crew foreman kept each gang box locked. Additional tools could be checked out from a "tool room" and were to be returned to the tool room at the end of the day.

Prior to December 1978, tool theft and tool hoarding had been a recurring and expensive problem. Posted on the fence surrounding the job site were signs warning that persons caught removing tools from the project would be subject to prosecution. Pinkerton security furnished personnel to control perimeter access to the job site.

Respondent was a member of Crew 52, a night-shift pipefitting crew consisting of a foreman and eight crew members. On the morning of December 20, 1978, a day-shift pipefitting crew, Crew 5, reported to work and discovered that its gang box had been broken into. The lock on the gang box had been cut with a pair of bolt cutters. A quick investigation revealed that a member of Crew 52, Gus Groves, had checked out bolt cutters from the tool room on the previous night. In the presence of Superintendent Terry Heers, security guards opened the Crew 52 gang boxes with a master key. At the top of one of the gang Heers directed that an inventory be made of the tools in the Crew 52 gang boxes. The gang boxes and the individual tool boxes that were inside the gang boxes were emptied and all of the tools of a particular kind were put in a pile for inventory purposes. Some of the tools in the gang boxes were in individual tool boxes and some were not.

boxes was a set of welding gauges, the hoses of which had been cut recently. These cuts matched the other ends of the hoses that remained in the Crew 5 gang box. Also present in a Crew 52 gang box was a pair of welding leathers belonging to a member of Crew 5.

Next, Heers discussed the situation with Service Manager Gary Warblow and with Assistant Project Manager Wallace Sykora. They decided to go to the sheriff's office to discuss the problem. The sheriff sent Warblow and Heers to the prosecutor's office, where they met with Callaway County Prosecutor Gene Hamilton. Hamilton testified that Warblow and Heers initially asked him about the possibility of search warrants for the houses of seven members of Crew 52, and he told them that search warrants were not possible because (1) the seven people resided outside of Callaway County and the warrant would be limited to that county; and (2) there was no showing that tools had been taken from the plant or that they were actually located in their houses. He said that no probable cause existed to search their houses. After a conversation lasting approximately a half hour, Heers and Warblow, at the suggestion of the prosecuting attorney, signed a blank complaint against respondent. Hamilton then filed an information upon which an arrest warrant was issued. On February 15, 1979, Hamilton dismissed the charges against Sanders.

II

Appellant raises a number of issues on appeal. First, we must address appellant's argument that respondent failed to establish all of the elements of the tort of malicious prosecution, particularly the requisite "malice." This involves examining whether MAI 16.01 (1981) correctly defines malice for a malicious prosecution. MAI 16.01 provides, in part, that malice is "the doing of a wrongful act intentionally without just cause or excuse." Also involved is a determination of whether this same instruction should be used when instructing the jury on punitive damages in a case involving a malicious prosecution.

Actions for malicious prosecution have never been favorites of the law. There is almost universal agreement that sound public policy dictates that the law should encourage the uncovering and prosecution of crime. Any "policy that discourages citizens from reporting crime or aiding in prosecution would be undesirable and detrimental to society in general." Cates v. Eddy, 669 P.2d 912, 917-18 (Wyo.1983). Courts have always recognized that "[m]alicious prosecution is an action which tends to dilute the public policy of encouraging persons having knowledge of possible crimes to cooperate with public officers." Seelig v. Harvard Cooperative Society, 1 Mass.App. 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. See L. Green, Judge and Jury 338 (1930). See also Higgins v. Knickmeyer-Fleer Realty & Investment Co., 335 Mo. 1010, 74 S.W.2d 805 (1934); Hunter v. Karchmer, 285 S.W.2d 918 (Mo.App.1955); Bellington v. Clevenger, 228 S.W.2d 817 (Mo.App.1950). In a federal circuit court opinion, for example, Justice Washington noted that: "[i]n trials of actions of this nature, it is of infinite consequence to mark with precision, the line to which the law will justify the defendant in going, and will punish him if he goes beyond it." Munns v. De Nemours, 17 Fed.Cas. 993, 995 (C.C.D.Pa.1811) (No. 9,926). The Virginia Supreme Court recently espoused this same attitude when it held that such actions "have been circumscribed by A person suing on a theory of malicious prosecution must plead and prove six elements: (1) the commencement of a prosecution against the plaintiff; (2) the instigation by the defendant; (3) the termination of the proceeding in favor of the plaintiff; (4) the want of probable cause for the prosecution; (5) the defendant's conduct was actuated by malice; and (6) the plaintiff was damaged. S. Greenleaf, II Greenleaf on Evidence §§ 449-59 (2nd ed. 1844). See also Stafford v. Muster, 582 S.W.2d 670, 675 (Mo. banc 1979). We focus our attention on the fifth and crucial element of malice; and, because malice also justifies a punitive damage award, we must address the connection between the type of malice necessary to establish liability and that which is necessary to sustain an award of punitive damages.

limitations more stringent than those applied to most other tort actions." Bain v. Phillips, 217 Va. 387, 228 S.E.2d 576, 581 (1976). Numerous commentators also have expressed this sentiment, including Lord Holt more than a hundred years ago, Martin Newell at the turn of the century, and Prosser and Keeton during our own era. See N. Newell, Newell on Malicious Prosecution 21 (1892); W. Prosser & W. Keeton, Prosser & Keeton on the Law of Torts 870-71, 882 (1984). See also Stewart v. Sonneborn, 98 U.S. 187, 8 OTTO 187, 25 L.Ed. 116 (1878), Alexander v. Petty, 35 Del.Ch. 5, 108 A.2d 575, 577 (1954); Miller v. Pennsylvania R. Co., 371 Pa. 308, 89 A.2d 809, 810 (1952); Penton v. Canning, 57 Wyo. 390, 118 P.2d 1002, 1004-05 (1941); 52 Am.Jur.2d Malicious Prosecution § 81, at 187-89; 54 C.J.S. Malicious Prosecution § 3, at 954. We believe that this public policy coupled with current crime rates mandates that we reexamine the element of malice in a malicious prosecution as it is defined for the jury in our present MAI 16.01.

The word "malice" connotes a culpable mental state, but the term lacks any uniform definition. In a well-researched opinion in 1917, the Arizona Supreme Court observed that "[t]here are different kinds and degrees of malice as well as the nature of the evidence going to prove its existence." Griswold v. Horne, 19 Ariz. 56, 165 P. 318, 323 (1917). Indeed, one eminent scholar commented that the term is so "slippery" that it should be banished from the law. Ames, "How Far an Act May Be A Tort Because of the Wrongful Motive of the Actor," 18 Harv.L.Rev. 411, 422 n. 1 (1905). We have retained the term and, not surprisingly, the different kinds and degrees of malice have often been confused throughout the development of the law in Missouri. The result is that we now utilize a single definition of malice and it is highly questionable whether it properly describes either the malice required to sustain a malicious prosecution or that required to sustain punitive damages in a malicious prosecution.

In general, the law recognizes three degrees of malice....