Stoker v. Elniff

• Decision Date: 05 January 1931
• Docket Number: No. 16915.,16915.
• Citation: 33 S.W.2d 977
• Parties: STOKER v. ELNIFF.
• Court: Missouri Court of Appeals

33 S.W.2d 977

STOKER v. ELNIFF.

No. 16915.

Kansas City Court of Appeals. Missouri.

January 5, 1931.

Appeal from Circuit Court, Jackson County; A. Stanford Lyon, Judge.

"Not to be officially published."

Action by Theodore Stoker against John Elniff. Judgment for plaintiff, and defendant appeals.

Affirmed.

Percy C. Field, of Kansas City, for appellant.

Warren A. Drummond, of Kansas City, for respondent.

ARNOLD, J.

This is an action in damages for malicious prosecution. The facts shown are that plaintiff, a man seventy-seven years of age at the time of the alleged malicious prosecution, was operating a small lunch and popcorn wagon on the south side of Fifteenth street at the intersection of Bellefontaine street, immediately west of the west sidewalk line of Bellefontaine street and opposite what is commonly known as "The Grove," a municipal recreation park in Kansas City, Mo. Prior to the time of plaintiff's alleged malicious arrest, as shown by the evidence, there were a number of lunch and popcorn wagons in operation in that vicinity. It appears that at the time of the arrest giving rise to this lawsuit all the other wagons had abandoned the vicinity except the one operated by plaintiff.

The testimony shows defendant owns some buildings at and near one of the corners of Bellefontaine street and on the north side of East Fifteenth street, consisting of two storerooms, his residence, and an apartment building. The storerooms and apartments are let by defendant.

The petition is in four counts, of which 1 and 3 were voluntarily dismissed by plaintiff, leaving counts 2 and 4 as the basis of this action. Count 2 charges that on or about July 11, 1927, defendant did willfully, maliciously, and without probable cause, make affidavit in the municipal court of Kansas City, Mo., and did willfully, maliciously, and without probable cause attempt to charge plaintiff with having committed a violation of certain ordinances of Kansas City, Mo., and did willfully, maliciously, and without probable cause, procure and cause the arrest of plaintiff on or about July 12, 1927, thereby compelling plaintiff to enter into a recognizance for his appearance in said court; that in accordance with the provisions of said recognizance, plaintiff was compelled to appear in said court on or about July 13, 1927, and was tried therein; that defendant appeared in said court and prosecuted plaintiff at said time; that upon trial plaintiff was discharged; that because of said prosecution plaintiff has suffered much embarrassment and humiliation, his business and reputation have been damaged, and he has suffered, and will continue to suffer, much pain and mental anguish. The prayer asks $5,000 actual and $5,000 punitive damages.

The fourth count is like unto the second but is based upon an arrest of plaintiff at defendant's instigation on August 5, 1927, whereby plaintiff was compelled to enter into a recognizance for his appearance in the municipal court of Kansas City, Mo., on August 6, 1927; that plaintiff appeared at said time and place, and on a hearing in court was again discharged. It is alleged defendant was present at this last-named hearing and prosecuted plaintiff. Malice is charged in the fourth count, as in count 2, and judgment is asked for $5,000 actual and $5,000 punitive damages.

The amended answer is, first, a general denial, and, as affirmative defense, alleges that at the time stated in the petition, plaintiff was guilty of violating the ordinances of Kansas City, and that defendant acted upon the advice of an assistant city counselor of said city.

The reply is a general denial of new matter set up in the amended answer; denies each and every allegation of such new matter contained; and further states that if defendant counseled and advised with an assistant city counselor of Kansas City, as alleged in said answer, the defendant did not do so in good faith, and did not disclose all the facts and circumstances surrounding the charges as afterwards made against the plaintiff, which defendant knew or could have ascertained with reasonable diligence, and that defendant was actuated by hostile and angry passions toward plaintiff.

Upon the pleadings thus made the cause went to trial to a jury, resulting in a verdict for plaintiff on the second count for $75 actual and $175 punitive damages. The jury also found for plaintiff on the fourth count, assessing thereon $75 actual and $175 punitive damages. Judgment was accordingly entered. Timely motions for a new trial and in arrest of judgment were overruled, and defendant appealed.

The testimony shows plaintiff, assisted at times by his wife, had operated his popcorn wagon at the point named in the statement of facts, for a period of five or six years prior to the occurrences giving rise to this lawsuit. The informations and warrants were identified by the deputy clerk of the North Side court. John J. Rieger, for plaintiff, stated he was clerk of the municipal court; he identified the warrants and informations in the case, stated they were signed by defendant, and that plaintiff was discharged at the trials. Defendant attempted to show by this witness on cross-examination that there was no trial on the first charge, but he stated witnesses were sworn and the cause tried. Joseph A. Gorman, an assistant city counselor, testified he had charge of issuing all complaints for violation of city ordinances; that he issued the informations for the prosecutions in this case on complaint of defendant; that defendant came to see him voluntarily and told him plaintiff was running a popcorn stand on the street and that he (defendant) wanted to get rid of him; that after talking to defendant some time, the defendant finally said: "I don't think he has a license." Witness asked defendant if he wanted to make a complaint against plaintiff for not having a license, and defendant said he did. This witness further testified there is a department at the city hall to look after persons doing business without a license and make the complaints against such offenders. On cross-examination this witness denied he had advised this prosecution; stated defendant told him he (defendant) wanted to "get rid of him," but did not tell witness that the city had refused to issue a license to plaintiff.

Certain ordinances of the city of Kansas City relating to the duties of license commissioners, location and hours for street stands, and lunch wagons were introduced in evidence. A deposition of defendant previously taken was introduced in evidence as admissions against interest. In that deposition defendant stated he first went to the license department to see about getting defendant removed and arranged that a license would be refused plaintiff; that he also secured an order from the city manager directing the license department not to issue to plaintiff an occupation license and that he (defendant) delivered such an order to the license department; that he later signed the papers in the city counselor's office to arrest plaintiff for not having a license; that after the first trial where plaintiff was discharged, witness again went to the city hall and had him arrested, this time for blocking traffic; that on trial of that charge plaintiff was again discharged.

The record discloses that count 4 of the petition is based upon plaintiff's arrest for blocking traffic with his popcorn wagon. As applying to the fourth count, one Albert Testher, for plaintiff, testified he passed the popcorn stand from one to three times each day during the summer of 1927 and never saw any blockade at that point. Plaintiff testified he was 77 years old when arrested; that he had operated this popcorn stand on the edge of Fifteenth street for six or seven years; but that when he went to the city hall for a license in 1927, the department refused to issue one; that he was arrested on the first charge and taken to the police station; that he went to court the next day and was discharged; that he closed up his business for the purpose of going to court; that some time afterwards the police came again in an automobile and took him to the police station; that when he was arrested this time, defendant stood across the street and laughed at him; that he went to court the next morning and was again discharged; that his stand never obstructed traffic.

There was testimony tending to show plaintiff's popcorn wagon was about eight feet long by four feet wide, and stood with its longitudinal side near the curb. Plaintiff's wife testified she saw the stand each day and that at no time did it block traffic; that after the arrest of plaintiff he was restless at night and did not sleep; seemed to lose all ambition; that he is now so feeble he cannot even carry a bucket of ashes and sometimes falls down in walking.

Defendant testified he submitted the facts covering the affair to Mr. Gorman, assistant city counselor, who advised the complaint, and that the municipal judge trying the case did not hear any evidence; that sometimes automobiles in such numbers as to block traffic would stop at the stand to buy popcorn; that he did not laugh at plaintiff when the second arrest occurred; that he was not present and did not know when this arrest was made. Defendant's wife testified she had seen two or three automobiles parked at the popcorn stand at the same time and that they blocked traffic.

One J. H. Mooney, a boarder at defendant's residence, testified he had seen cars stop at plaintiff's stand, sometimes two or three at a time.

At the close of plaintiff's case and again at the close of all the evidence on each count, defendant offered demurrers, both general and special, which were refused by the court. This ruling is the basis of the first assignment of error on this appeal. On this point it is urged the evidence fails to show malice; that "malice and want of probable cause must coexist to warrant an action for malicious prosecution,...