Sergeant v. Watson Bros. Transp. Co.

• Decision Date: 04 March 1952
• Docket Number: No. 47966,47966
• Citation: 52 N.W.2d 86,244 Iowa 185
• Parties: SERGEANT v. WATSON BROS. TRANSP. CO., Inc.
• Court: Iowa Supreme Court

Page 86

52 N.W.2d 86

244 Iowa 185

SERGEANT v. WATSON BROS. TRANSP. CO., Inc.

No. 47966.

Supreme Court of Iowa.

March 4, 1952.

Miller, Davis, Hise & Howland, Des Moines, Loyal G. Kaplan and Kennedy, Holland, DeLacy & Svoboda, Omaha, Neb., for appellant.

Ralph L. Powers, Joseph Z. Marks, Des Moines, for appellee and cross appellant.

HAYS, Justice.

Action at law for damages. The petition containing four counts, in effect alleges four distinct causes of action, all of them, however, arising out of the same general transaction. Count I is for False Imprisonment Count II, Malicious Prosecution; Count III, Damage to plaintiff's Over-the-road Tractor; and Count IV, Conversion of plaintiff's Automobile. Both actual and exemplary damages are asked under Counts I, II, and IV. There was a verdict and judgment for plaintiff on Counts I, II, and IV; and for defendant on Count III. Both parties have appealed. Hereinafter, plaintiff will be referred to as appellee; defendant as appellant.

Appellant is a Nebraska Corporation authorized to do business in the State of Iowa, with its principal office in Omaha, Nebraska. Fay V. Watson is President and William Wolfe, Vice President of Appellant Corporation; and both reside in Omaha. Appellant maintains a branch or terminal office in Des Moines, Iowa. Commencing July 5, 1949, F. L. O'Brien became the Des Moines terminal manager succeeding Jack Watson in that position. Appellant operates a number of trucks and maintained a garage and repair shop in Des Moines. Due to the quantity of oil and grease used, it had a contract with the Cushman-Wilson Oil Co. of Des Moines whereby it received a discount on the purchase of such articles from said Oil Co.

Appellee was a resident of Des Moines; and during the time in question, was employed by appellant as a mechanic and shop foreman at the Des Moines terminal. As such, he had authority to purchase needed supplies for the company, including oil and grease from the Cushman-Wilson Oil Co. In 1948, appellee, under what appears to be a secret arrangement with a salesman for Cushman-Wilson Co., started ordering oil, listed as Watson Bros. Transportation Co. and Bill Sergeant. The oil would be delivered to appellant's garage and then sold and delivered by appellee to a W. C. Rose who operated a Standard Service Station. Eight barrels of oil were sold to Rose, at least two of which were ordered in the name of Watson Bros. Transportation Co. and charged to its account. The others were apparently paid for in cash by appellee, payment being made to the salesman. Prior to March, 1949, these transactions were unknown to both appellant and the Oil Co. Early in the spring of 1949, appellee requested that the Oil Co. pay him the contract discount on the oil he had purchased and sold to Rose, being five or six barrels.

Following this request from appellee, Cushman-Wilson Co. wrote appellant Exhibit 'C', which is a letter in which inquiry was made as to the basis of appellee's request for a discount. A copy was sent to appellee. On March 8, 1949, a Mr. B. A. Fowler, employed in appellant's Accounts Payable Department, wrote a letter to appellee, Exhibit 'B'. This letter was in part as follows: 'We cannot understand why you are attempting to secure discounts for oil which belongs to this Company under our contract; nor can I follow them when they state that you purchased six drums during the year, but apparently only two of them were purchased in your name. I want your complete and full explanation as to the disposition of all oil purchased by you on our contract by return mail.'

Appellee testified that he answered Exhibit 'B' by letter, Exibit 'F', and also talked with him on the phone about March 12, 1949. He told Fowler of the manner in which he had handled the oil. Fowler testified that after receiving Exhibit 'F', he talked with appellee on the phone. He told him that under no circumstances was he in any manner to mix his personal business with that of Watson Bros. Appellee told him he had stopped. The above facts were told to William Wolfe but not to Fay Watson.

On July 5, 1949, F. L. O'Brien became the Des Moines terminal manager and made an investigation in reference to oil purchased from Cushman-Wilson Oil Co.; as it appeared as though an excessive amount of oil was being purchased. On the night of July 25, 1949, he saw a 55-gallon drum of Delvac Oil (being the brand used and purchased by appellant from Cushman-Wilson Co.) at the Rose service station. He knew Cushman-Wilson did not sell to Standard stations. Rose told him he bought it from Bill Sergeant (appellee). O'Brien called Fay Watson at Omaha and advised him of the situation. At Watson's request, he called appellee at his home in Des Moines at about 11:00 p m., July 26, 1949, and asked him to come to the office at once, which he did. When he arrived at the office, O'Brien called Fay Watson at Omaha, told him Sergeant was there, and then followed a conversation between Watson and Sergeant. After this phone conversation, appellee signed a statement which reads as follows: '7/26/49. I, B. Sergeant, hereby admit stealing four barrels of oil and sold them to Bill Rose. (Sgd.) Bill Sergeant.' It was at Watson's request that appellee gave O'Brien the above written statement.

Fay Watson's office hours were 2:00 p. m. to 3:00 a. m. At his request appellee went at once to Omaha, arriving at appellant's office about 2:30 a. m. There was a discussion which continued until about 4:00 a. m., at which time Watson told appellee to go to a hotel and to return to the office that afternoon. Upon his return, he met with Watson and Wolfe who had been informed of the situation by Watson. After more heated discussion, appellee signed Exhibit 'D' which reads: 'I, Wm. Sergeant, hereby admit theft of 4 bbls. of oil from Watson Bros. Shop located on Southwest Fifth Street, Des Moines, Iowa. The oil was sold by me to Wm. Rose of Des Moines, Iowa. (Sgd.) Wm. Sergeant.'

Thereafter, at Wolfe's suggestion, the Omaha Police Department was called and soon two detectives arrived. Exhibit 'D' was shown to them and appellee was taken to the city jail. On the morning of July 28, 1949, he was taken to the Police Inspector's office. No charges had been filed. Two Des Moines detectives were in the office. One of them, Mr. Antrim, asked him if he wanted to go to Des Moines and he said yes. He signed an extradition waiver and returned to Des Moines, arriving about 12:30 p. m. He was placed in jail until about 4:00 p. m. when he talked with detectives Beardsley, one of the two who were in Omaha, and E. V. Skain. Exhibit 'E' was signed at this time by appellee. This is a statement in question and answer form and is to the same effect as Exhibit 'D'.

Skain filed an information in the Des Moines Municipal Court, Exhibit 'A', charging appellee with embezzlement in violation of Chapter 710, Code of 1946, I.C.A.; and appellee was released on a $500 bond. On August 4, 1949, after a hearing, appellee was held to the Grand Jury and released on his own recognizance. Thereafter the case was dismissed by the Grand Jury.

The above facts are not in dispute. The record further shows the following matters.

Appellee testified: In the conversation with Watson, by phone, on July 26, 1949, he was threatened with immediate arrest unless he signed the statement given to O'Brien. That it was signed through fear. During the conversation with Watson and Wolfe on the 27th, he was cursed, threatened with arrest and even death if he did not admit the theft and sign Exhibit 'D'; which he finally did. That before he was allowed to consult an attorney upon arriving in Des Moines, he was required to sign Exhibit 'E'. He stated he knew at least two weeks prior to July 26, 1949, the last two barrels of oil sold to Rose had been charged to appellant and he had offered to pay for them at that time. He further stated, as to the signing of Exhibit 'D': 'I felt he may have been correct when he said that buying in accordance with my deal with Cushman-Wilson may have been the same as stealing.' Also: 'After he accused me of stealing the four barrels of oil, I figured that if he said it was stealing on using the contract; it was stealing. I signed the contract there.'

Fay Watson denies that any threats or force were used, as also does Wolfe, as to the July 27 conversation; but does not deny cursing him.

Count II is based upon a Malicious Prosecution.

'Malicious prosecution is an action ex delicto for the recovery of damages which have proximately resulted to person, property, or reputation from a previous unsuccessful civil or criminal proceeding, which was prosecuted without probable cause and with malice.' 54 C.J.S., Malicious Prosecution, § 1. In an action of this type the burden rests upon the plaintiff to establish each and all of the following propositions before being entitled to a recovery, to wit: (1) He was prosecuted in a criminal proceedings; (2) Defendant instigated such prosecution; (3) The prosecution terminated favorable to the accused; (4) Defendant acted without probable cause; (5) Defendant acted with malice; and (6) Damages. Schnathorst v. Williams, 240 Iowa 561, 36 N.W.2d 739, 10 A.L.R.2d 1199; Minard v. Boss Hotels Co., 241 Iowa 606, 40 N.W.2d 276. The prosecution contemplated here is a proceeding of a judicial character. 54 C.J.S., Malicious Prosecution, § 5. Probable cause, as herein used, means 'the knowledge by the prosecuting witness of such a state of facts as would lead a man of ordinary caution and prudence, acting conscientiously, impartially, reasonably, and without prejudice, to believe that the person accused is guilty.' Bair v. Schultz, 227 Iowa 193, 288 N.W. 119, 122; Weisz v. Moore, 222 Iowa 492, 265 N.W. 606, 269 N.W. 443. To instigate the prosecution means that the party against whom damages are sought was the proximate and efficient cause of maliciously putting the law in motion. As stated in Restatement,...