Webb v. Byrd

• Decision Date: 07 July 1922
• Docket Number: No. 17073.,17073.
• Citation: 243 S.W. 405
• Parties: WEBB v. BYRD.
• Court: Missouri Court of Appeals

243 S.W. 405

WEBB v. BYRD.

No. 17073.

St. Louis Court of Appeals. Missouri.

July 7, 1922.

Appeal from Circuit Court, Cape Girardeau County; Frank Kelly, Judge.

"Not to be officially published."

Action by Charles Webb against William Byrd. Judgment for plaintiff, and defendant appeals. Affirmed.

A. M. Spradling, of Cape Girardeau, for appellant.

David B. Hays, of Jackson, for respondent.

NIPPER, C.

This is an action for damages for malicious prosecution. Plaintiff recovered judgment for $750, and defendant appeals.

On October 13, 1915, plaintiff and defendant, who were both residents of Jackson, Cape Girardeau county, Mo., were attending a special sale advertised and conducted by a dry goods company in that town. The defendant had purchased some articles of merchandise, and, after paying for the same, lost his pocketbook. After making some inquiry, he was advised by one Sachse, who was standing on the outside of the store building, that plaintiff had his pocketbook. He had a subsequent conversation with Sachse a short time later, when Sachse advised him again that he saw plaintiff spending money, which he considered an unusual thing, and that he was satisfied that plaintiff had his pocketbook. Defendant then went to the office of an attorney and consulted him about the matter, and from defendant's evidence it appears that he took Sachse with him. The attorney advised him to procure a search warrant and have plaintiff searched. This was done. The constable searched plaintiff, but did not find the pocketbook. The pocketbook was later found in a shirt box in the store, and was finally returned to defendant. Whether the pocketbook had any money in it before or after it was lost the evidence does not disclose.

This is the second appearance of this case here. On the first appeal it was reversed and remanded. It will be found reported in 203 Mo. App. at page 589, 219 S. W. at page 683, to which reference is made for a more detailed statement of the facts which led to this verdict and judgment. The only material difference in the facts upon the former trial and as adduced by this record is that it appears in the present case that the defendant took Sachse with him when he went to consult his attorney. The errors pointed out in the former appeal do not appear on this appeal.

Defendant assigns as error the failure of the trial court to sustain his demurrer to the evidence; but under practically the same state of facts we held on the former appeal that there was sufficient evidence to take the question of want of probable cause to the jury, and defendant has produced no reason or authority to justify us in changing our ruling on that question.

Defendant also contends that he made a full and fair statement of all the facts to his counsel, and therefore he should not be held liable. But, as stated Webb v. Byrd, supra, 203 Mo. App. loc. cit. 500, 600, 219 S. W. loc. cit. 885:

"In the instant case defendant testifies (and so does his counsel) that he told counsel, among other things, that after missing his pocketbook, and after the conversation with Sachse, he saw plaintiff in the store and had the conversation with plaintiff to which we have referred above, and that plaintiff first stated that he had defendant's pocketbook and afterwards denied it. This is flatly contradicted by plaintiff; plaintiff testifying that he did not have any conversation with the defendant at all on that day prior to the time when he...