The State ex rel. Mann v. Trimble

• Decision Date: 19 December 1921
• Parties: THE STATE ex rel. MOSES MANN v. FRANCIS H. TRIMBLE et al., Judges of Kansas City Court of Appeals, and ALBERT CORNELIUS
• Court: Missouri Supreme Court

232 S.W. 100

290 Mo. 661

THE STATE ex rel. MOSES MANN v. FRANCIS H. TRIMBLE et al., Judges of Kansas City Court of Appeals, and ALBERT CORNELIUS

Supreme Court of Missouri, First Division

December 19, 1921

Writ quashed.

Randolph & Randolph, Dudley, Selby & Brandom and Hewitt & Hewitt for petitioner.

(1) Instruction No. 10 given for the plaintiff is in conflict with Nicholson v. Rogers, 129 Mo. 141; Ruth v St. Louis Transit Co., 98 Mo.App. 18; Bosch v Miller, 136 Mo.App. 493. That instruction is a direction to the jury to award both actual and punitive damages and is clearly in conflict with the authorities cited. (2) Instruction No. 9 is clearly in conflict with Smith v Burrus, 106 Mo. 99. In that case the court said "And the mere discontinuance of a criminal prosecution, or the acquittal of the accused, will establish for the purpose of this suit neither malice nor want of probable cause." The instruction is also in conflict with Eckerle v. Higgins, 159 Mo.App. 186. In the face of those decisions, Instruction No. 9 told the jury that the dismissal of the information by the prosecuting attorney was evidence that the prosecution was without probable cause. (3) Instruction No. 2 is clearly in conflict with Boeger v. Langenberry, 97 Mo. 396, and Wilkerson v. McGhee, 153 Mo.App. 349. (4) The judgment in the replevin suit of Mann v. Cornelius, a case that was tried after the arrest, is held by the Court of Appeals to be competent evidence in the case. The replevin suit was a subsequent adjudication, had not been begun when the arrest was made, and the case should rather have been submitted upon the question as to whether or not the tank belonged to the real estate, and as to whether or not the defendant under all the facts and circumstances was justified in believing that the tank belonged to him. That ruling is clearly in conflict with Carp. v. Ins. Co., 203 Mo. 295, 338; Vansickle v. Brown, 68 Mo. 627, 632; Kennedy v. Holloway, 25 Mo.App. 514.

L. W. Reed, Thos. H. Hicklin and Scott J. Miller for respondent.

(1) The instructions in the Nicholson case absolutely direct a verdict for punitive damages and this in plaintiff's instruction is certainly left to the discretion of the jury. Instruction No. 10 was copied from the case of Fugate v. Millar, 109 Mo. 278. (2) The next instruction criticised by the petitioner is No. 9 given on behalf of plaintiff as being in conflict with Smith v. Burrus, 106 Mo. 99. In the case of Williams v. Van Meter, 8 Mo. 339, it is held at page 342, "that the acquittal of plaintiff in the cause for which he was bringing suit for malicious prosecution was proper evidence to go to the jury on the question of want of probable cause, but that of itself and unaccompanied with any circumstances would be insufficient, and the Williams case is approved and quoted from in the recent case of Hanser v. Bieber, 271 Mo. 342, where it is held that such evidence is competent, and which expressly approves the opinion in Christian v. Hannah, 58 Mo.App. 37, holding to the same effect; that is, that evidence of the acquittal or discharge of defendant in the suit on which the malicious prosecution case is based is competent evidence of lack of probable cause. The above cases hold and we believe it is unquestionably the law of this State that testimony as to the acquittal of plaintiff in this case, defendant in the larceny case on which this suit is based, was competent evidence to go to the jury on the question of lack of probable cause. (3) Next petitioner complains that plaintiff's Instruction No. 2 is in conflict with Boeger v. Langenberry, 97 Mo. 393-7, and the case of Wilkerson v. McGhee, 153 Mo.App. 349, and seems to base most of their complaint on the fact that Instruction No. 2 employs the language in defining probable cause "a cautious man" while in the Boeger-Langenberry Case the words "a person of ordinary prudence" is used and in the Wilkerson-McGhee Case the words "reasonable and cautious man" is used. The case of Fugate v. Miller, 109 Mo. 285, uses the words "a cautious man," the same as does this instruction, and being a later case than that of Boeger v. Langenberry, supra, the Court of Appeals probably followed it. (4) And lastly, petitioner complains that the judgment in the replevin suit of Mann v. Cornelius was held to be competent evidence in the case by the Court of Appeals and cited authorities to show that it was not. Petitioner here on the trial strenuously objected to the introduction of the records of the replevin suit; after his objections were overruled and the record admitted in evidence, he failed to save any exceptions to the ruling of the court, hence was in no position to raise the question in the Court of Appeals and is not now in such position in this court.

ELDER, J. J. T. Blair, J., dissents.

OPINION

Certiorari.

ELDER J.

Relator seeks by writ of certiorari to review the opinion of the Kansas City Court of Appeals and quash the judgment entered by that court affirming a judgment for $ 750 actual and $ 250 punitive damages rendered by the Circuit Court of Dekalb County in an action for damages for malicious prosecution brought by one Albert Cornelius against Moses Mann (relator herein).

The evidentiary facts in the case are thus stated in the opinion of the Court of Appeals:

"Defendant caused an information to be filed in the Circuit Court of Daviess County by the prosecuting attorney of that county, charging plaintiff with stealing a 'steel tank of the value of $ 17.50.' A warrant was issued and plaintiff arrested. The case was thereafter dismissed, and plaintiff thereupon brought this action for malicious prosecution and obtained judgment for both actual and punitive damages.

"It appears that plaintiff bought a farm from defendant, principally on deferred payments. A steel watertank was on the place, so situated in a fence as to form a part thereof and so arranged as to be a facility in watering stock. After occupying the farm for two years it became apparent that he could not pay for it, and he re-sold or deeded it back to defendant, remaining in possession another year as defendant's tenant. When plaintiff had taken possession after his purchase of the farm, defendant came to him and told him which of several articles of property did or did not go with the farm under the deed. Among other things he told him the tank did not, but that he would give it to plaintiff, and the latter kept and used it. When plaintiff's year as defendant's tenant expired he moved to a place he had rented, which was about ten miles away in another county, and he took the tank now in controversy with him. It was this taking that defendant claimed was the asportation which he called the theft of the tank, and upon which he based his instigation of the prosecution.

"Shortly after plaintiff was arrested defendant instituted an action of replevin for the tank in the county to which it had been taken by plaintiff. The final result of these actions, civil and criminal, was that the former was decided for this plaintiff and the latter was dismissed.

"There was evidence tending to show that before making affidavit to the information filed against plaintiff, defendant laid the facts before the prosecuting attorney and he advised that a crime had been committed."

Relator assigns as error: (a) The giving of four certain instructions for plaintiff, which are claimed to be in conflict with controlling decisions of this court, and (b) the admission in evidence of the judgment in the replevin suit mentioned in the opinion, contrary to previous rulings of this court. These alleged errors we shall discuss seriatim. In view, however, of our well established rule to disregard, on certiorari, any alleged conflict with opinions of the several Courts of Appeal, we shall not advert to the decisions of Courts of Appeal cited by relator in behalf of the relief sought.

I. With reference to the instructions, the Court of Appeals, in its opinion, has the following to say:

"A number of instructions were given by the trial court for each party and a number offered by defendant were refused. Complaint is made of the action of the court in giving those for plaintiff and in refusing those refused for defendant. All-told there were eighteen or twenty given, and there were eight refused for defendant.

"Those given for plaintiff properly covered every phase of a case of this nature. Malice and probable cause are defined, and so is defendant's duty in seeking the advice of the prosecuting attorney as to the guilt of plaintiff; and to these was added a definition of petit larceny as applied to the taking of the water tank. [Fugate v. Millar, 109 Mo. 281, 19 S.W. 71.]

"Those given for defendant were the converse of those for plaintiff, and were made applicable to those matters of defense which would authorize and make necessary a verdict for defendant. There can be no doubt that taking all the instructions together as a series (Fugate v. Miller, supra) they put the case for both sides in such way as to leave no room for misunderstanding by the jury.

"There is much in those refused which is found in those given and there was no necessity for repeating.

"All in those refused which was proper was included in instructions given."

Relator contends that Instruction No. 10 is in conflict with Nicholson v. Rogers, 129 Mo. 136, 31 S.W. 260, for the reasons that the instruction "is a direction to the jury to award both actual and punitive damages," that "the jury must first find actual or express malice before they may in their discretion award punitive damages," and that "punitive damages are furthermore entirely in the discretion of the jury." Instruction No. 10 is as follows:

"The court instructs you that if you...