*1 58 MISSOUBI BEPOBTS, Lonergan.
Heifer v. Co. & he taken and in which sick, and from manner died, attending last was taken sick, the circumstances appear phy testimony it would illness, poison by ptomaine sicians, that his death was caused ing, infer and we think fair reasonable a fact ence And from the based established .facts. n that was which he was, he the manner in attacked being partook it shown that he food substances in pto we think it reasonable mentioned evidence, to he ference drawn from the facts, same poison maine was taken into the stomach some time dur ing evening August [Mer the afternoon or 1916. Railway (Mo. App.), kel. v. Mail Association, S. assignments Other of error have examined we find them without merit. record is free from error, reversible under appears of this it facts
righteous one. The Commissioner recommends that it be affirmed. foregoing
PEB opinion, CURIAM:—The of Nipper, adopted opinion C., is court. The' accordingly of the circuit court is affirmed. Becker, P.
Allen, J., J., concur; Daues, J., sitting. Respondent,
JOHN HELFER, H. QUAR HAMBURG RY COMPANY and THOMAS Ap LONERGAN, pellants. Appeals. Opinion Louis Court St. July 20, Filed 1921. Corporations: 1. PROCESS: Service of: Individuals: .Place Bringing Suit. corpora- Where the facts disclose that a defendant tion, it, time suit was filed did have an office agent city Louis, of St. could not be city; brought said to be resident of said it therefore with- TERM, Quarry Co. only by reason of the fact that of the court being and, Louis, of action accrued i nthe corporation, authorized Section Statutes Revised *2 county upon its where service summons it another president (see 1192), this service and held resided section bring upon corporation plaintiff not within could residing individual defendants of the St. Louis 1919, as in different under Revised Statutes counties section applies only section to one where a brought. county is a in which suit resident Damages: 2. MALICIOUS PROSECUTION: Elements. Attachments: provisions ‘1919, Under the Revised Statutes of section plaintiff which makes the in an attachment suit dissolu- thereby, damage tion thereof for liable all occasioned loss category reasonably be said to come within this naturally damage constitute an' item of which flows attachment.
-:3. '-: -: Loss Time: Absence of Proof of alleged Value: In an for Inferences. action for suit, prosecution malicious of an absence attachment proof plaintiff of the value of the from his busi- loss time of necessarily ness the attachment occasioned defense of suit, jury could infer the reasonable value thereof. Damages: Exemplary i. APPELLATE PRACTICE: for Plain- Verdict Appeal. for tiff: Consideration Given Evidence on In an action alleged prosecution for the of an malicious attachment exemplary damages ground where asked for on the against maliciously attachment the probable out him sued without cause, damages, plaintiff’s allowed evi- light dence favorable to must be considered most him determining question. 5. MALICE: Want of Probable Cause: Inferences. Malice be probable inferred from want cause. Corporate Shortage EMBEZZLEMENT: 6. Officers: in Accounts: Criminal Intent Inferred. Where the fact that officer of a cor- poration established, short in his accounts was and that he had possession money corporation in his of defendant he which .accounted, money had intent to embezzle such criminal could be inferred. Exemplary Damages: 7. MALICIOUS PROSECUTION: Attachments: Corporate by Evidence: Conversion of Funds Officers: Record Judgment: Admissible: Error Cured An Remittitur. attach- 208 MISSOURI APPEAL REPORTS, Co. & brought by corporation against ment one officers on of its ground misappropriated that he had its dissolved on funds was plea corporation abatement. In for mali- prosecution cious attachment it is claimed that where probable attachment was without cause and en-' malicious titling plaintiff punitive damages, probable on the issue of cause, competent corporation it was for the defendant to show that parties in a suit between the same it had recovered a against plaintiff pleadings which possession funds of the in his for which he had failed to account and he had converted to his own use. conclusive, While the record of such it was tending evidence to show prosecution, permitting the court erred in not the introduction of such evi- evidence, however, only dence. Such affected plaintiff’s right exemplary damages, and was therefore held that such error cured damages. could remittitur of such *3 Appeal City from the Circuit Court of the of St. Louis.— Judge.
Hon. Franklin Ferriss, (with directions) Ham- Reversed and remanded burg Quarry Company. Lonergan. as to Defendant Reversed appellants. Anderson & Gilbert for respondent. Pearcy A. and for John Gilliam Smith & action out C.—This BIGGS, arose alleged prosecution suit malicious attachment Hamburg Quarry Company the defendant By plaintiff plaintiff. alleges petition his that on February Quarry Company 14, 1917, the defendant was capital Missouri stock of $40,000, plaintiff of $12,000 and the held Lonergan par plaintiff, $14,000 value; that Lonergan, Rutledge (Rutledge originally and one was joined as a defendant but trial died before the and dismissed) action as to him was were directors of the TERM, Co. & president, Rutledge sec- Lonergan company; was that gen- vice-president plaintiff retary, and and the manager. date that on said eral It further averred Rutledge Quarry Company, and the said probable wrongfully, wantonly maliciously without and jus- against plaintiff in a cause out an attachment sued plain- alleging said tice that Louis, sum tiff was indebted the said for which that the said action $138.81 injuries arising brought from com- was for felony misdemeanor, mission of some said fraudulently part debt was contracted on the of said Heifer, the defendant said attachment suit, wrongfully, wantonly maliciously said defendants had an and without cause attachment writ issued cause levied the 120 said shares stock Quarry Company. owned said said change It after is also averred that venue the justice plea in a was tried court on in abatement and finding on behalf said Heifer resulted in a appeal plea from decision and that no taken said completely dis- said attachment was thereon, and fully solved and terminated. the acts is then
It said obligations incur have caused the at- torney’s fees for defense attachment him $1,000, the sum of have caused to lose injured of $1,000, his business the value and have *4 reputation standing greatly hu- and in business, his and damage sum of and in the miliated harassed him, Judgment ac- $27,000 is asked the sum $25,000. punitive damages. $20,000 tual Lonergan Quarry Company an-
Defendant and the Lonergan separately. up swered his answer sets County, he has been and is a now resident Jackson until and that Missouri, his death in March, 1918, the Rutledge Chicago, defendant was a resident of Illinois; Quarry Company a is Missouri REPORTS, 208 MISSOURI Lonergan. Quarry Co. Hamburg, place at chief of business its office time County, that neither Missouri; Charles Quarry any has said suit was nor at since filed agent, any Company done maintained an office, By city Louis. reason business of St. these jurisdiction over had no facts is court Lonergan him cannot the suit as general up de- further a maintained. The answer set allegations petition. plaintiff’s nial Quarry Company The answer of the defendant general denial. being ain before
The cause tried resulted judgment against both defendants for verdict and punitive dam- sum actual of $1485 $2000 ages, making From a total of this de- $3485. pros- Lonergan fendants have separate appeals. ecuted appeal
As to the of defendant It first is acquired asserted his behalf no person by over his reason the manner of service upon City, writ of summons him at Kansas Missouri, By allegations where he resided. reason of the fact petition showing set forth in the ac- cause of tion defendant accrued in of St. Louis Company being corporation provisions writ of summons under issued section 1180, Revised Statutes 1919, and served in Jack- County upon president son the defendant Quarry Company. At the copy same time a the writ was issued personally and served Loner- gan county. in Jackson authority any procedure The if for found section 1190 of the statute, which authorizes a to summons any directed to sheriff in the state when there are several residing in different counties. following stipulation appears in the record:
MARCH TERM, Quarry Co. & was insti- “It suit at the time this conceded that then the defendant tuted and at all times since County of now a resident of was, has been and is times Jackson, Missouri, at un- State of all April, James E. Rut- til defendant his death in 1918, Chicago, City ledge of State of resident of Missouri; that Illinois non-resident of the State corporation, Hamburg Company incor- the porated ais under of the of Missouri, June, the laws State place chief at Ham- with its officeand business County, burg, St. that neither at Missouri; Charles any at time this suit was nor since has said time filed Hamburg Quarry Company an office, maintained had agent any City done Louis, business of St. Mis- by that at souri; date delivered writ was County, Hamburg Quarry sheriff Com- Jackson pany gone out business had no office Ham- at this, burg, Missouri; that the City was filed a suit resident and ever Louis St. City since has been a resident of the Louis. Hamburg
It is conceded right it' had its propriety waived the method of service.” place bringing governed and manner suits is law. pro- statute Section Revised Statutes may
vides that be suits instituted: “First, when the is a defendant either county State, resident county within which the defendant resides or in with- in which the may resides and the be found; second, when there are several defendants, and they reside brought counties, different be any county; third, when there are several de- fendants, some residents and others non-residents, suit brought any county any in which resides.” provides: against corporations
Section 1180 “Suits shall be commenced county either in the where the cause . . any . county accrued, action or in where such REPORTS, MISSOURI *6 Lonergan. Quarry Co. & v.
Heifer agent keep usually an officeor corporations or have shall customary busi- their usual and the of transaction ” ness. are sev- there “When as follows: 1190 is Section plain- counties, residing the different in defendants eral 'any to option directed summons a tiff have ’ separate sum- Missouri, or a in the State of sheriff any which one county in sheriff of the directed to mons may be found.” or defendants more nothing about 1180 section It be noted should sa^s brought the suit is bringing in other case county corporation where cause the the the provisions of section And under the of action accrued. plaintiff right bring re- in defendants of a applies only where siding ato case counties in other county in plaintiff which a defend- defendant in sues a ant resides. stipu- conceded facts disclosed
Under the as Quarry supra, Company defendant at the lation, agent an office not have or suit was did filed city not be a resi- of St. Louis could said and. city. brought jurisdiction within It dent was only by fact that the reason of the court being Louis, action accrued St. authorized statute, service section City president upon it at Kansas where its
summons upon [See 1192.] With section this service resided. plaintiff Company Quarry as at- basis, defendant tempts bring within the of the St. Louis Lonergan by having court the defendant writ sum- provisions under the section mons issued 1190. This applies only not authorize, the statute does as section to a one of case where the defendants is a resident county brought. which the is suit Such construction Supreme placed statute Court in Williams, case Christian 111 Mo. 20 S. W. 96. In that one of the defendants did not reside county but was found in which the re- TERM, Co. with, process The «sided was served there. county service
then another caused a writ to issue to held action. It was another same defendant in procedure statute. by the that such was unauthorized App. W. 73 S. Mo. [See, also, Stone, Roberts v. Ap (Springfield Court 388, and v. McCall Conrad peals), would be situation 265, l. 226 S. c. any other if otherwise a resident of the individual case, it was here, Louis and served but such not the de instituted the conceded that at time the *7 agent Quarry Company officeor fendant no here Rutledge of a non-resident that the then defendant compelled the of are to look to the State Missouri. We authority, statute law it does authorize serv Lonergan upon ice the defendant under the of summons set his facts of the point as herein forth. It follows plea is well taken his in abatement should been evi have sustained and also his to the demurrer plaintiff’s dence at the close of case should been given. There is no contention that the defendant Loner gan jurisdiction anywise of waived the by any jurisdic himself action of submitted to the court. It follows tion of the St. Louis fendant as to de should reversed. Company’s appeal. Quarry theOn This concededly within the the court and being upon it attachment its suit, abatement, was rendered liable a matter as of law under provisions 2983, of section Statutes Revised 1919, “for all occasioned the attachment or other proceedings being case.” It admitted jury dissolved, attachment was instructed the against Company find the defendant for such they plain- actual as find from the evidence reasonably will tiff has as sustained fairly cover a attorney’s'fee reasonable in connection with the defend- ing sustaining plea of said attachment
208 M. A.—5 REPORTS, 208 MISSOURI
- Co. & damages, actual thereto, addition and in if. abatement any, the evidence from you find and believe which time the loss account on has sustained necessarily defense occasioned from his business plea of said in abatement. complains because instruction this
Defendant plaintiff’s busi permits recovery time loss of speculative and con remote which is said to be ness damage. as sequently proper To not a element plain agree. statute makes the The we do sertion thereof liable may tiff in dissolution attachment thereby. damage” for “all Loss occasioned category within this reasonably be and to to come damage naturally constitute an item flows from App. Mo. [Talbot Co., v. Plaster the attachment. Carp v. 203 Mo. l. c. Co., 15; 295, 132 S. Ins. Suther Thies, 89; 101 S. Walser v. 56 Mo. 78;W. Damages (4 Ed.), 1237.] sections 1236 and land on proof of the loss And the absence of the value infer reasonable thereof. value time, could supra; Jennings Appleman, [Walser v. Thies, Mo. App. 12-19, S. W. foregoing only attack made Quarry behalf of as far *8 by
actual found the are concerned. by It is contended that the evidence con- clusively probable for established the attachment consequently punitive in the alloAvance form the permissible only should as stand are in event the the attachment was malicious and without probable cause. is on This based the fact that it said is plaintiff himself on admitted he stand that was short- accounts with company defendant and that such admission constituted embezzlement of the funds company. plaintiff While that if stated he was good, short he would make it he denied that there was shortage, and his evidence must'be considered in the light most determining question. to him favorable TERM, y. Quarry Co. & quarry superintendent plaintiff The was a at kept then office the defendant’s accounts were care- record examined the Louis. We fully probable cause malice and and think the questions correctly to the submitted were jury were whole The evidence their determination. plaintiff fully finding no warrant a that the would embezzling any of defendant intention of the funds probable finding care, entrusted to his of want justified fully evi- cause for the attachment was probable dence. a want of Malice be inferred from cause.
On the issue of is cause it claimed that permitting court committed in not error appealed show the result of the suit on the merits justice justice In court. Quar- suit before the plaintiff ry Company, in that action—defendant here— failed to sustain the attachment and also failed appealed trial on company the merits. The from the justice decision of the court to the circuit court and there judgment against obtained a plaintiff, Heifer, for Upon $53.35. the trial of this defendants here- in offered in 'together evidence that case pleadings with alleges involved. The statement Quarry Company, paid action, to the money certain (fully amounts of described statement) expended to be held defendant plaintiff; the account thereafter defendant ex- pended for the use benefit a certain amount of money fund but that of said delivered to defendant, personal defendant converted to his own use the is every sum of part $360, which sum and thereof owing plaintiff. aud due It is then de- fendant is entitled to certain credits which left a balance of $53.35,for which prayed. sum judg- ment based plaintiff’s statement assesses the damages at the sum of $53.35. *9 REPORTS, 208 MISSOURI Quarry Co.
Heifer pleadings re based "Whether fact to establish ferred to tended specific it guilty funds, a common-law conversion say. such necessary we think However to here tend between. establish, record and did Company, short Heifer was Heifer and the company. may Such’shortage in his accounts innocently and Heifer been have existed have free any if intent. However the fact that he criminal he had and that in his accounts established short money Quary Company possession his intent to em he criminal accounted, for which had money [State Lentz, be inferred. bezzle could such Surety Com Wells v. 970;W. 239, l. c. Mo. S. App. pany, S. Mo. l. 184 W. c. provides: “If Revised Statutes
Section any apprentice, private person, agent, any etc., of clerk, any agent, clerk, servant, etc., . if officer, . . or person employed company, any incorporated any or capacity, any own or convert to shall embezzle his such or em- . assent his master use . . without belonging any money, goods, ployer, any such etc., possession person, come which shall into his or under employment office, shall, his care virtue he punished,” conviction, be etc. Under this statute presumed is, from the intent act, a criminal shortage [State to account. v. Lentz, failure from a supra.] probable we the issue think was
On com- petent the defendant to show parties in a it had suit between the'same recovered judgment against pleadings Heifer on company pos- that Heifer had funds of the in failed for which account which he session he to his own use. This had converted alone would not conclusively establish cause because the short- innocently age may have existed and' without criminal in the case this record circuit intent. While *10 69 TERM, 1921 Quarry Co. v. guilty em- Heifer was the fact that did not establish tending estab- competent to evidence it was bezzlement, namely, a short- crime, of that elements lish one of the court company. the think age "We the in the accounts the evidence. permitting introduction the in erred not Crescent Hough, 524; S. W. [Boogher 99 12 Mo. Company, U. S. Union City Butchers prose- criminal 653.] In a 106 Pac. Clark, Smith v. 159; necessary show be it would statute cution under the to the shortage the event In failure account. to plaintiff such guilty Heifer was or as whether issue to involved the circuit been in embezzlement had argument effect counsel of defendant’s prob- judgment evidence case was conclusive persuasive, but such able would be cause" only one of elements not an case but issue namely, constituting short- issue, embezzlement was shortage age may may or not have accounts. Such intent. in the criminal been with a criminal prosecution not infer such criminal intent shortage. admissi- from the We think evidence conclusively but it was establish ble, as probable cause. instructions and
We examined the think correctly trial court stated as to cause the rule meaning and the thereof that no error com question. regard [Carp. to such mitted v. Ins. Co., 295, l. 355, Mo. c. S. refusing As the error admit evidence judgment only record in the circuit court affects judgment exemplary Company will be reversed and cause with with remanded judgment to enter directions $1485 original judgment, provided interest from the date days will within ten remit the amount of punitive damages namely, allowed, $2,000; otherwise be should reversed and cause remanded Quarry Company. for a new trial as to the As to the APPEAL REPORTS, 208 MISSOURI Gladney et al. v. et al. Gibson Loenrgan should be reversed heretofore indicated. opinion foregoing PER CURIAM:—The Biggs, adopted opinion judg-
C., is as the of the court. The Hamburg Quarry ment of the Circuit Court as to Com- pany accordingly will remand- reversed *11 with ed directions recommended Commissioner, provided plaintiff a remittitur of $2,000 enters within days; ten otherwise reversed and the remanded for new trial. toas is reversed. P. Allen, J., J., Dames, concur; Becker, J., absent. E. WATERS, BUSHMAN, W. C. GLADNEY, R. D. L. L. ED REID, R. MAYES,
MONTGOMERY CALLIE C. MAYES, D. MAYES, WILKINSON, J. Appellants, C. R. PALMER, JOHN WELLS PALMER, GIBSON, JOHN M. J. M. HENRY, K. PALMER, R. CANNON, ROSCOE JOSEPH FLOYD DISTRICT GALLOWAY SCHOOL OF Respond- corporation, ELSBERRY, MISSOURI, ents. Appeals. Opinion July 11, Court of Louis Filed 1921. Select-,
1. SCHOOLS AND SCHOOL DISTRICTS: Cities and Towns: i»g Changing Site: Schoolhouse Location Site Established: Education, seeking enjoin Powers of Board of In an action certain school district directors school district selecting changing a schoolhouse site the district and from the location aof school site theretofore established in said dis- trict, 11143, 11236, 11238, sections 11241 and 11314 of Re- together vised are Statutes reviewed other sections relating etc., districts, to school when held that section provision city, contains that “the board of education in locate, town or consolidated school district shall direct