Waddell v. Krause

• Decision Date: 02 May 1922
• Docket Number: No. 16966.,16966.
• Parties: WADDELL v. KRAUSE.
• Court: Missouri Court of Appeals

241 S.W. 964

210 Mo. App. 117

WADDELL v. KRAUSE.

No. 16966.

St. Louis Court of Appeals. Missouri.

May 2, 1922.

Rehearing Denied June 6, 1922.

Appeal from St. Louis Circuit Court; G. A. Wurdeman, Judge.

Action by Forest Lee Waddell against Ernest J. Krause, Jr. Judgment for plaintiff, and defendant appeals. Affirmed.

James M. Breckenridge and William E. Garvin, both of St. Louis, for appellant.

Zoseph T. Davis and E. H. Wayman, both of St. Louis, for respondent.

DAUES, J.

This is an action for malicious prosecution; the petition prays for the recovery of actual damages in the sum of $25,000, and punitive or exemplary damages it the sum of $25,000. The answer is a general denial. The trial before the court and a jury resulted in a verdict and judgment for plaintiff in the sum of $1,000 as actual damages, and $500 as punitive damages, from which defendant appeals.

About February 2, 1917, plaintiff purchased a Ford automobile from the Krause Motor Corporation at Webster Groves, Mo. This car is identified by its factory number, to wit No. 1559447. Plaintiff paid part cash, the remainder being borrowed from the Motor Time Sales Company, which company makes a business of financing time-payment sales of automobiles. For the amount so borrowed plaintiff executed a chattel mortgage in favor of that company, the payments being spread over monthly installments. The mortgage, it appears, was later indorsed by the Motor Time Sales Company, and deposited with the City Trust Company in the city of St. Louis, Mo., as collateral for loans made by the Motor Time Sales Company.

This automobile was later sold for cash by plaintiff to the Hercules Body Corporation. With the proceeds thus received, he bought from the same Krause Motor Corporation a second Ford automobile, which was not covered by a chattel mortgage. This second automobile was again sold, and a third purchased from the same source and paid for by plaintiff, and this car was also unincumbered by mortgage. The original chattel mortgage and the notes thereunder were being paid off and canceled as the monthly installments became due on the 2d of each month. The last two notes, falling due on January 2 and February 2, 1918, were taken up on December 3, 1917, by plaintiff before maturity. The last automobile above mentioned was sold by plaintiff, who was also personally selling Ford automobiles, to one Walter Korn. This transaction took place November 26, 1917. Plaintiff testified that he told defendant that he was going to sell the first, or mortgaged, car, and that defendant told him to go ahead, saying, "We will be able to give you a new car," and that he therefore did not say anything about the mortgage to defendant, because there was no mortgage on the second and succeeding cars.

On cross-examination, plaintiff said that after his arrest, but on the same day, December 3, 1917, and before the preliminary hearing on December 5, 1917, he paid the two remaining installments then not yet due, to the City Trust Company; that defendant would ask plaintiff occasionally how he was getting along with the payments on his car, and that plaintiff would say he had a few more payments to make. Plaintiff emphatically denied ever having told defendant that he had a mortgage on any car subsequent to the first car. The following questions and answer appear in his cross-examination:

"Q. Let me ask you this question: After you bought this third car that you sold to Korn, didn't you say to Mr. Krause, `Mr. Krause, I want to meet an installment on my mortgage on this car?' A. No, sir; not this car.

"Q. What was it you said? A. I said, `I want some money to meet my notes.'

"Q. Meet your notes? A. I never once said I want money to meet this car."

On further cross-examination, plaintiff was asked whether defendant was not under the impression that the last-owned car was mortgaged, to which plaintiff answered, "Well, that wag up to him."

On December 1, 1917, which was Saturday, plaintiff went into the office of the Krause Motor Corporation, for which corporation he was also selling cars, and was there questioned by defendant, who was the president of the Krause Motor Corporation, about his failure to sell any automobiles for the company during that week. Plaintiff explained that he was doing his best, but that he was unable to make much headway because he had no machine and was under handicap to get about. Krause and plaintiff discussed the matter of getting another machine for plaintiff to use out of the stock of the company. On the Sunday following, December 2, 1917, the defendant drove to the farm of Walter Korn, and there saw the Ford machine which plaintiff had sold Korn on November 26, 1917. Defendant asked Korn whether plaintiff had told him that this automobile was covered by a chattel mortgage. When informed that he had not, but that plaintiff told him the car was "all 0. K.," defendant told Korn that he would take care of the situation, and in his own automobile conveyed Korn to Webster Groves to the office of the justice of the peace. It being Sunday, the justice was attending church. He was called by an usher, and introduced to Korn by defendant. Defendant told the magistrate that Korn wanted a warrant for a man who had sold him a mortgaged automobile. When the justice asked the name of the accused, the defendant told him the warrant was asked for Forrest Waddell, the plaintiff herein. A warrant was prepared and sworn out against the plaintiff. There is evidence tending to show that the defendant was active in furnishing the information and was taking a very considerable interest in the prosecution. The plaintiff was arrested the next day by the constable on the warrant issued, the arrest taking place in the office of the Krause Motor Corporation, in the presence of the defendant, who, when he saw the arrest consummated, said, according to plaintiff:

"We know what kind of trouble you are in. It is a federal penitentiary offense, and I hope you will go there."

Plaintiff Was incarcerated in the jail at Webster Groves, where he remained for several hours, until a bail bond was approved. The charge against plaintiff was a felony; the automobile being valued at more than $50. This prosecution was bottomed upon section 4570, R. S. Mo. 1909, now section 3348, R. S. Mo. 1919.

At the trial it was readily disclosed that the automobile was sold by plaintiff to Korn free from any mortgage. It should be said that the chattel mortgage given on the first car was properly recorded in the office of the recorder of deeds for St. Louis county, and contained a proper description of the car therein affected.

There was evidence that before defendant went to the farm of Korn on Sunday, he (Krause) had communicated with the mortgagee of the first car referred to, and had informed the manager of the Motor Time Sales Company that plaintiff had sold the mortgaged car, and that defendant was told by the manager of that company that his company "had had a mortgage on Waddell's car," but that they had released Waddell under that mortgage, and were not concerned about the matter.

The defendant testified that by reason of conversations had with plaintiff he was led to believe that each time plaintiff sold an automobile he would transfer the mortgage to such succeeding automobile as he purchased same, and, being informed by plaintiff that he was still paying the notes, he was led to believe that the automobile sold to Korn was under mortgage, and that he in fact was told by plaintiff that this automobile was mortgaged, which, as stated above, the plaintiff denied.

Morn was produced as a witness by the defendant, and testified, in effect, that he made affidavit to the complaint without persuasion from the defendant. The testimony of this witness is very indefinite. There was evidence in rebuttal by plaintiff, introduced for the purpose of and tending to affect the credibility of this witness.

The trial court sustained a demurrer to the evidence as to the Krause Motor Corporation, which was joined as a defendant below, but overruled same as to defendant E. J. Krause, Jr. We are discussing the case, therefore, without reference to defendant Krause Motor Corporation.

At the outset we are confronted with respondent's motion to affirm the judgment, which asks for an affirmance of the judgment upon 14 grounds, all of which, however, are to the effect that appellant's abstract of the record is "so incomplete, so misleading, and so intermingled with comments, conclusions, and arguments of counsel for appellant that respondent is and has been unable to prepare a reply to appellant's briefs herein filed, and that this court cannot fully adjudge and determine the issues herein presented."

While this motion would not lie for reasons not necessary here to discuss, we are, however, of the view that the abstract of the record is sufficient to present the questions raised on this appeal.

We are asked to reverse the judgment for error on the part of the lower court in refusing a demurrer to...