O'Donnell v. Chase Hotel, Inc. | Cases | Westlaw

Error is assigned on the action of the court in setting aside the judgment for plaintiff and entering a judgment for defendant in accordance with defendant's motion for a directed verdict presented at the close of all of the evidence. As grounds therefor the trial court stated that the plaintiff's conviction in the Police Court was prima facie evidence of probable cause for the instigation of the prosecution and that the burden was on plaintiff to show that such conviction had been obtained by fraud or perjured testimony; and that plaintiff failed to show that the conviction had been obtained by such means. Much of plaintiff's brief is devoted to an attack upon the view expressed in the court's order, but as was said under similar circumstances in Gruetzemacher v. Billings, Mo., 348 S.W.2d 952, 955:

The constitutive elements of an action for malicious prosecution are: (1) the commencement or prosecution of the original proceedings against the present plaintiff; (2) its legal causation by the present defendant; (3) its termination in favor of the present plaintiff; (4) the absence of probable cause for such proceedings; (5) the presence of malice therein; and (6) damage to plaintiff by reason thereof. Huffstutler v. Coates, Mo., 335 S.W.2d 70; Hughes v. Aetna Insurance Co., Mo., 261 S.W.2d 942; Coleman v. Ziegler, Mo., 248 S.W.2d 610. Regarding the fourth element, absence of probable cause, it is the general rule in Missouri that evidence that plaintiff was convicted in the original proceedings creates a presumption that there was probable cause for its instigation; and that plaintiff to prevail must overcome such presumption by proof that the conviction was obtained by false or fraudulent testimony, or other improper means, or that the defendant himself did not believe the facts alleged in support of the prosecution. This general rule applies even though the plaintiff shows that the conviction was subsequently reversed or set aside on appeal. Boogher v. Hough, 99 Mo. 183, 12 S.W. 524; Wilkerson v. McGhee, 265 Mo. 574, 178 S.W. 471; Wilcox v. Gilmore, 320 Mo. 980, 8 S.W.2d 961; Bonzo v. Kroger Grocery & Baking Co., 344 Mo. 127, 125 S.W.2d 75; Hughes v. Aetna Insurance Co., supra; La Chance v. National Pigments & Chemical Co., Mo.App., 104 S.W.2d 693. With the necessary changes in points of detail, the same principles determine the issue of probable cause when the original proceeding was a civil suit and a judgment was rendered against the present plaintiff at the first stage of the original proceeding. Wilcox v. Gilmore, supra; Laughlin v. St. Louis Union Trust Co., 330 Mo. 523, 50 S.W.2d 92; Ripley v. Bank of Skidmore, 355 Mo. 897, 198 S.W.2d 861; McMahon v. May Dept. Stores Co., Mo., 374 S.W.2d 82. In this respect our rules are in accord with the great weight of authority. Wilcox v. Gilmore, supra; Restatement, Torts, Sec. 667, p. 421 and Sec. 675, Comment b., p. 447; 54 C.J.S. Malicious Prosecution §§ 24b and *492 37; 34 Amer.Jur., Malicious Prosecution, Secs. 55 and 57.

The general rule has been extended to include not only convictions as prima facie evidence of the existence of probable cause, but also an indictment voted by a grand jury and a commitment by an examining magistrate. Wilkerson v. McGhee, supra; Higgins v. Knickmeyer-Fleer Rlty. & Invest. Co., 335 Mo. 1010, 74 S.W.2d 805; Huffstutler v. Coates, Mo., 335 S.W.2d 70. However, it appears that a conviction in a police court which is reversed on appeal, at least after a trial de novo, is not prima facie evidence of probable cause in a subsequent action for malicious prosecution. This exception to the general rule had its genesis in Hanser v. Bieber, 271 Mo. 326, 197 S.W. 68, and appears to have ripened to fruition in Randol v. Kline's Inc., 322 Mo. 746, 18 S.W.2d 500, which reached the court on a second appeal, 330 Mo. 343, 49 S.W.2d 112. In Hanser v. Bieber, supra, it was shown that the plaintiff had been arrested on complaint of defendants and charged with disturbance of the peace. He was tried, convicted and fined in the Police Court of the City of St. Louis and appealed to the Court of Criminal Correction, where he was found not guilty and discharged. Plaintiff thereafter sued the defendants, alleging false imprisonment in one count of his petition and malicious prosecution in the other. Cast on demurrer at the close of his evidence, plaintiff took a nonsuit and appealed when the trial court refused to set it aside. In what may be regarded as the controlling opinion, written by Judge Walker, it was conceded that according to the weight of authority elsewhere a judgment of conviction in a criminal case was conclusive evidence of probable cause in an action for malicious prosecution, although the conviction was reversed on appeal. But Judge Walker, after noting the distinguishing characteristics between a criminal prosecution and a proceeding for the violation of a municipal ordinance, said (197 S.W. 68, 72):

The contention of Judge Walker in Hanser v. Bieber, supra, that ‘* * * A judgment upon reversal becomes not only nonexistent, but as though it has never been * * *’ would seem to be as applicable to all convictions or judgments reversed on appeal as to that of a conviction obtained in a police court. Nevertheless, as we have pointed out, the Supreme Court in the first appeal in Randol v. Kline's Inc., supra, has differentiated, on the issue of probable cause, between the evidentiary effect of a police court conviction reversed on appeal and that of a conviction or judgment rendered in any other court subsequently set aside or reversed on appeal. Plaintiff's only citation was to Hanser v. Bieber, supra. The holding in Randol v. Kline's Inc., supra, is the last decision of the Supreme Court on the evidentiary effect of a police court conviction which is reversed on appeal, and so far as our own research has disclosed has never been reversed or distinguished. As the last controlling case in point we are required to follow it. Mo.Const., Art. V, Sec. 2, V.A.M.S. We cannot, therefore, agree with the learned trial court as to the evidentiary effect of the evidence of plaintiff's conviction in the Police Court inasmuch as she was acquitted on appeal after a trial de novo.

But though the wrong reason for its action may have been assigned, it does not necessarily follow that the court erred in setting aside the verdict and judgment for plaintiff and entering judgment for defendant in accordance with defendant's motion for a directed verdict presented at the close of all the evidence. Gruetzemacher v. Billings, Mo., 348 S.W.2d 952; City of St. Louis v. Evans, Mo., 337 S.W.2d 948; Producers Produce Co. v. Industrial Commission of Missouri, 365 Mo. 996, 291 S.W.2d 166. An action for malicious prosecution is no favorite of the law, and the burden is on the plaintiff to strictly and clearly prove all of the necessary elements of his cause of action. Harper v. St. Joseph Lead Co., Mo., 233 S.W.2d 835; Higgins v. Knickmeyer-Fleer Rlty. & Inv. Co., 335 Mo. 1010, 74 S.W.2d 805. Among those elements, as has been stated, is that the defendant instigated the prosecution of the original proceeding against plaintiff. It is apparent from the most casual perusal of the record in this case that the plaintiff wholly failed to prove that element of her cause of action. All that plaintiff's evidence showed on that score was that after the Police Captain had inquired of her whether she desired to prosecute Price, and she had answered *495 that she did, a similar question was directed to Price, who replied that he wanted to cross-charge plaintiff. That evidence may have been sufficient to show causation in an action against Price, but plaintiff is suing defendant, not Price. Plaintiff attempted to predicate the defendant's liability, if any, upon Price's agency. An employer is liable for a malicious prosecution instigated by an employee if the employer previously authorized or subsequently ratified the employee's action, or if it was done within the scope of the employee's employment. Harper v. St. Joseph Lead Co., supra. But there is not a scintilla of evidence in the record that defendant directed or authorized Price to institute the prosecution against plaintiff, nor is there the merest shred of proof that defendant subsequently ratified Price's action. Indeed, plaintiff developed on her cross-examination of Price that ‘the Chase Hotel’ had neither insisted on the prosecution of plaintiff nor even discussed it with him after it was instituted. Price was not the defendant's general agent, and the only evidence as to his duties was that he was employed to protect the defendant's property. As was said in Harper v. St. Joseph Lead Co., supra: ‘* * * We may not imply an authority upon a plant guard to procure the institution of a prosecution by a prosecuting attorney or a grand jury. Evidence is required to thus extend his authority, and it may not rest in judicial notice. * * *’ And see Milton v. Missouri Pac. R. Co., 193 Mo. 46, 91 S.W. 949, 4 L.R.A.,N.S., 282; Alexander v. Emmke, Mo.App., 15 S.W.2d 868. In the light of plaintiff's own testimony of the circumstances under which Price instigated the prosecution against plaintiff, we are of the opinion that all that plaintiff's evidence showed is that Price's action in that regard was a purely personal one, undertaken solely by him in retaliation for the charge which plaintiff had lodged against him. It follows that the court did not err in setting aside the judgment for plaintiff and entering judgment in favor of defendant.