Standley v. Western Auto Supply Co.

• Decision Date: 12 January 1959
• Docket Number: No. 22850,22850
• Citation: Standley v. Western Auto Supply Co., 319 S.W.2d 924 (Mo. App. 1959)
• Parties: Don STANDLEY, Appellant, v. WESTERN AUTO SUPPLY COMPANY, a Corporation, Respondent.
• Court: Missouri Court of Appeals

Page 924

319 S.W.2d 924

Don STANDLEY, Appellant, v. WESTERN AUTO SUPPLY COMPANY, a Corporation, Respondent.

No. 22850.

Kansas City Court of Appeals, Missouri.

Jan. 12, 1959.

Morris & Lay, Kansas City, for appellant.

James W. Benjamin, Rogers, Field, Gentry & Jackson, Kansas City, for respondent.

MAUGHMER, Commissioner.

Plaintiff sued defendant company for malicious prosecution, claiming both actual and punitive damages. At the close of plaintiff's evidence the trial court sustained defendant's motion for a directed verdict. Plaintiff's motion for new trial was overruled. Within proper time and on April 7, 1958, plaintiff filed his appeal 'from the order overruling plaintiff's motion for new trial'. On this same date plaintiff filed a 'motion to appeal forma pauperis', accompanied by a supporting affidavit. This latter motion was denied by the trial court May 21, 1958.

Although the court's action in denying plaintiff's application to appeal forma pauperis was not set up in the motion for new trial (it could not have been since it was first filed ten days after the motion for new trial was overruled), plaintiff complains on this appeal that it was error to deny him the right to prosecute the appeal as a poor person. Section 514.040, V.A.M.S. provides that the court before or after commencement of suit may, '* * * in its discretion * * *' permit a litigant '* * * to commence and prosecute * * *' his action as a poor person. In State ex rel. Miller v. Smith, Mo.App., 120 S.W.2d 184, it was held, in accord with the statute, that disposition of such a motion rests within the sound discretion of the court, and was not subject to control by mandamus. Plaintiff's testimony in the case showed him to have been regularly employed as a truck driver by the Bailey Transfer Company for a period of six years and he was so employed at the time of the trial. There is nothing in the record before us showing an abuse of discretion in denying plaintiff's application to sue as a poor person, and the point is ruled against appellant.

By motion filed in this court defendant asks us to dismiss this appeal because (1) the appeal, as taken, was from the '* * * order overruling plaintiff's motion for new trial', rather than from the judgment, and (2) because appellant's brief is typewritten and, therefore, not authorized under Supreme Court Rule 1.12, 42 V.A.M.S. In the exercise of our discretion we have decided in this case to receive and consider appellant's typewritten brief.

It is true that plaintiff's notice of appeal recites that the plaintiff appeals '* * * from the order overruling plaintiff's motion for new trial', and Section 512.020, V.A.M.S. does not specifically authorize an appeal from such an order. However, defendant's motion to dismiss cannot be sustained on this ground. In Weller v. Hayes Truck Lines, 355 Mo. 695, 197 S.W.2d 657, 659, the Supreme Court held that averments of notice of appeal should be liberally construed to permit appellate review so long as opposing party is not misled, and that a notice of appeal from an order and judgment overruling motion for new trial was sufficient notice of appeal from the final judgment. See also, White v. Johnson, Mo.App., 206 S.W.2d 577, 578; Boenzle v. United States Fidelity & Guaranty Co., Mo.App., 258 S.W.2d 938, 941.

Plaintiff's only additional assignment, and it was presented in the motion for new trial, is that the court erred in sustaining defendant's motion for a directed verdict and in entering judgment thereon for defendant. We shall consider this point and whether or not plaintiff made a submissible case.

In May, 1953, plaintiff bought a television set and some other items from defendant, and gave his promissory note in payment therefor. On June 29, 1955, he went into voluntary bankruptcy, listing the defendant Western Auto Supply Company as one of his creditors. Notice of such bankruptcy and later notice for objections to discharge were mailed to defendant. On December 13, 1955, plaintiff was finally discharged from the bankruptcy proceeding by the Federal Court. On February 1, 1956, defendant filed suit against plaintiff for the unpaid balance of said indebtedness which totaled, with interest and attorney's fees, $267.45. On February 24, 1956, plaintiff, by his attorney, filed answer and therein affirmatively set up the discharge of the debt by reason of the bankruptcy proceeding. On March 9, 1956, defendant dismissed the case, whereupon plaintiff filed this suit for malicious prosecution.

Only two witnesses testified--the plaintiff and his attorney. Plaintiff's attorney said he talked with a Mr. Miller, apparently an employee of the defendant company in the credit department, in the spring and summer of 1955, relative to this indebtedness. However, he only summarized conversations had while the plaintiff's petition in the bankruptcy court was pending under the Wage Earner's Plan. Defendant was not listed as a creditor under that proceeding and it was later voluntarily dismissed.

Plaintiff himself testified that he bought the merchandise, was unable to make the payments, filed the Wage Earner's Proceeding, but did not list defendant's debt in that schedule, dismissed it and then filed as a straight bankrupt. He said that after his discharge he received letters from defendant's attorneys asking that he pay this obligation and threatening suit if he did not pay. He delivered these letters and a similar one from defendant's representative, Mr. DeLeve, to his attorney. Neither plaintiff nor his attorney ever notified defendant company or its attorneys of the defense of bankruptcy to this claim. He stated that he had received a bill for attorney fees in that suit in the amount of $50.

In the trial below, plaintiff offered to prove that his Wage Earner's Bankruptcy petition was filed and that he told a Miss White, who was defendant's employee, about it and also about the later straight bankruptcy. Defendant was not listed as creditor in the first proceeding and it was voluntarily dismissed. This evidence was immaterial. His offer to prove that he told a Miss White about his later bankruptcy with no showing as to her employment capacity with defendant, coupled with his vagueness as to time and lack of even a general degree of definiteness as to just what he said, made this testimony inadmissible. The trial court properly refused to let him state the number of his children, and that they and his wife had been ill.

In a suit for malicious prosecution the burden is upon plaintiff to aver and prove the essential elements of such cause of action namely, (1) institution of the original judicial proceeding by defendant; (2) its termination in plaintiff's favor; (3) want of probable cause; (4) malice in instituting the proceedings and (5) resultant damage. Ripley v. Bank of Skidmore, 355 Mo. 897, 198 S.W.2d 861, 866. Under the evidence here there is no question but that defendant brought the suit. It terminated in favor of plaintiff, who suffered damage by incurring attorney fees. The question of malice is one for the jury. The decisive issue here is on the question of probable cause.

In 54 C.J.S. Malicious Prosecution Sec. 22, we find this definition: 'Probable cause in civil proceedings consists of such facts and circumstances as will warrant a cautious, reasonable, and prudent man in the honest belief that his action and the means taken in prosecution of it are just, legal, and proper'. And on page 1088, Sec. 97 'The question of probable cause in actions for malicious prosecution is solely for the determination of the court where the facts relied on are admitted or undisputed and only one inference can be drawn therefrom'. In Henderson v. Cape Trading Co., 316 Mo. 384, 289 S.W. 332, 334, the Supreme Court of Missouri stated the probable cause definition and the rule on burden of proof as to it in this language: 'The courts all agree that the gist of an action for malicious prosecution is the existence of malice and want of probable cause. Wilkinson v. McGee, 265 Mo. 574, loc. cit. 582, 178 S.W. 471. Probable cause is '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.' Boeger v. Langenberg, 97 Mo. 390, loc. cit. 396, 397, 11 S.W. 223, 224(10 Am.St.Rep. 322). If the facts are undisputed, it is the duty of the court to declare their legal effect, and state whether or not want of probable cause exists. * * * The burden is upon the plaintiff to show the existence of both malice and want of probable cause. Sappington v. Watson, 50 Mo. 83, loc. cit. 84. A bare showing that defendants voluntarily dismissed the civil suit or prosecution complained of, without other facts in evidence tending to show the existence of want of probable cause does not discharge plaintiff's burden of proof, and hence plaintiff makes no case for the jury upon such unsupported showing. Smith v. Burrus, 106 Mo. 94, loc. cit. 99, 16 S.W. 881, 13 L.R.A. 59, 27 Am.St.Rep. 329; Eckerle v. Higgins, 159 Mo.App. 177, loc. cit. 190, 140 S.W. 616'.

Until there is affirmative proof of lack of probable cause the defendant is not called on for his defense. Wilcox v. Gilmore, 320 Mo. 980, 8 S.W.2d 961, 962. In Lindsay v. Evans, Mo.App., 174 S.W.2d 390, it was held that probable cause for the bringing of a civil proceeding is a belief in the cause of action or facts alleged based on sufficient circumstances to reasonably induce such belief in a person of ordinary prudence so situated as was the plaintiff who instituted the proceeding. Section 509.090, V.A.M.S. lists '* * * discharge in bankruptcy * * *' along with accord and satisfaction and statute of limitations, among others, as defenses which shall be affirmatively pleaded.

In our case plaintiff alleged (1) Incurrence of the debt sued upon and its nonpayment; (2) That defendant company knew the debt had been discharged in...