Schwarze v. May Dept. Stores

• Decision Date: 18 September 1962
• Docket Number: No. 30899,30899
• Citation: 360 S.W.2d 336
• Parties: Louis SCHWARZE and Bernice Schwarze, his wife (Plaintiffs) Respondents, v. MAY DEPARTMENT STORES, d/b/a Famous-Barr Company (Defendant) Appellant.
• Court: Missouri Court of Appeals

Page 336

360 S.W.2d 336

Louis SCHWARZE and Bernice Schwarze, his wife (Plaintiffs) Respondents, v. MAY DEPARTMENT STORES, d/b/a Famous-Barr Company (Defendant)

Appellant.

No. 30899.

St. Louis Court of Appeals, Missouri.

Sept. 18, 1962.

Motions for Rehearing or to Modify Opinion or to Transfer to

Supreme Court Denied Oct. 15, 1962.

Dearing, Richeson & Weier, Samuel Richeson, Hillsboro, for appellant.

Earl R. Blackwell, Hillsboro, for respondents.

HARRY A. HALL, Special Judge.

This is an action for malicious prosecution of a civil action wherein plaintiffs had judgment for $250 actual damages and $10,000 punitive damages against defendant May Department Stores, d/b/a Famous-Barr Company, from which judgment the defendant has appealed.

The suit is based upon the filing of a second suit on an account owed by the plaintiffs to defendant, after plaintiffs had paid the account in full. Plaintiffs had a charge account with the May Department Stores, which had grown to an indebtedness of $169 over a nine-month period during which plaintiffs had made no payments on the account. The defendant's attorney, Maurice Frank, referred the account for collection to Irvin Emerson, an attorney in Jefferson County, who wrote plaintiffs December 9, 1958, advising them that the account had been referred to him for collection and demanding payment. Plaintiffs made no response and Emerson then filed the first suit on the account July 6, 1959, in the Magistrate Court, returnable July 23, 1959. Upon receipt of the summons, plaintiffs went to Emerson's office and requested an adjustment on the account because of a misalteration of two suits purchased by Mr. Schwarze. Emerson advised them that they would have to take up the adjustment with the defendant, and they went to the defendant's store in St. Louis on July 22nd and paid the account in full, including interest and costs. On the following day they went to the Magistrate Court and showed their receipt to the judge, who continued the case to July 30th because of Emerson's absence.

Plaintiffs testified that they returned to Emerson's office on July 30th and showed him the receipt, whereupon he told them he would dismiss the case. The Magistrate record shows the suit dismissed without prejudice by Emerson on that date.

Mr. Emerson testified to the contrary, stating that he was engaged in the investigation of a murder case as assistant prosecuting attorney and did not see the plaintiffs on the 30th nor know that the account had been paid or the suit dismissed, and was not advised of the payment by the defendant; that because of his duties as assistant prosecuting attorney, several cases, including this one, escaped his attention until the following January when he first learned it had been dismissed without prejudice.

Emerson assumed the suit had been dismissed when he failed to appear and refiled the suit on the identical account January 4 1960, on his own initiative, advancing the filing fee, without notice or other communication with any person connected with the defendant company. Plaintiffs were again summoned and came to Emerson's office and advised him they had paid the account in full and showed him the receipt. Over defendant's objection, plaintiffs testified Emerson told them he 'had instructions to refile the suit.'

After this visit, Emerson verified the payment of the account and dismissed the suit on the return date, January 21, 1960.

It further appears that defendant referred all its accounts in Jefferson County to Emerson for collecton, and that it had failed to notify him prior to the second suit that plaintiffs had paid their account. Emerson received his fee for the collection on January 29, 1960, after he had dismissed the second suit.

Appellant's first contention is that Emerson's authority to collect the account from the plaintiffs was terminated when plaintiffs paid the account in full, with costs, and presented the receipted bill from the defendant to him as proof of that fact, and that the court erred in failing to direct a verdict for the defendant at the close of the evidence.

Under the law, the relation between attorney and client is highly fiduciary in its nature and in a limited and dignified sense it is essentially that of principal and agent. 5 Amer.Jur. p. 286, Sec. 45; Fernbaugh v. Clark, 236 Mo.App. 1200, 163 S.W.2d 999 (K.C.C.A.). In Henderson v. Cape Trading Co., 316 Mo. 384, 289 S.W. 332, loc. cit. 334, the court said:

'Looking to the first ground stated, we should, of course, bear in mind that 'the relation of attorney and client is a relation of agency, and in its general features, is governed by the same rules which apply to other agencies.' Mechem on Agency (2d Ed.) Sec. 2150.'

It is equally well settled that where the purpose of an attorney's employment has been accomplished, the relationship terminates and his authority as the agent and representative of his client ceases. In Konta v. St. Louis Stock Exch., 150 Mo.App. 617, 131 S.W. 380, 382, (St.L.C.A.), the court held:

'However, as to matters pertaining to litigation, the presumption is that, except for the purpose of receiving notice of appeal or of a similar proceeding for review in the particular suit, the relation of attorney and client ceases to exist when final judgment is given. And, if one relies upon notice to an attorney in those circumstances, he must affirmatively show that the attorney continues to represent the client to whom notice is thus sought to be conveyed.'

See also Fernbaugh v. Clark,...