79 Mo. 449 | Mo. | 1883
Respondent, plaintiff below, sued the appellant in an action of trover,’ for the wrongful taking and conversion of certain household goods, wearing apparel, etc., the property of plaintiff. At the return term, and before answer filed, the plaintiff filed an amended petition, changing the action into one for maliciously suing out a writ of attachment, under which the goods were seized, and, as alleged,, sold at a ruinous sacrifice. The amended petition set out the proceedings in the attachment suit, the grounds for which, alleged in the affidavit made by the defendant in this action, were, that the defendant was not a resident in this State, that the cause of action therein accrued out of the State, and that the defendant had absconded and secretly moved his property and effects into this State, and had fraudulently concealed and removed and disposed of his property, etc. Service was obtained therein by publication of notice; there was no appearance by the defendant in that suit; judgment was rendered therein, and the goods sold. The defendant moved to strike out the amended petition for the reason that the same changed the original cause of action, and in fact substituted a new cause. This motion was overruled, and defendant excepted. The defendant, however, filed answer to the amended petition, and went to trial thereon before a jury.
The plaintiff’s evidence tended to show that he was an employe on a railroad train running into and out of the City of Kansas, Missouri; that prior to the 20th day of August, 1876, he and wife lived in Wyandotte, Kansas; that he then broke up housekeeping there and moved to Kansas City; that his wfife went east to visit her friends Part of his household effects he stored with a merchant in Kansas City, to be kept for him until he again resumed housekeeping in Kansas City, which he expected to do on his wife’s return in a short time; that he took rooms at the
The defendant’s evidence tended to show that he learned of the plaintiff’s movement, but was unable to ascertain, after diligent inquiry, his whereabouts, but ascertained the storage of the goods in Kansas City; that the debt was past due, and the plaintiff had given no notice of his intended movement; that he took counsel of a reputable lawyer, and on his advice instituted the attachment, in good faith, and without any malice, etc.
Questions touching the competency of certain evidence arose in the progress of the trial, which will be stated in the opinion, as also respecting instructions given and refused. The jury returned a verdict for the plaintiff. From the judgment rendered thereon the defendant has appealed to this court.
The original action in this case was merely for trover. On the trial of that action the plaintiff would have made out a prima facie case by showing title to the property, and that defendant, without his consent, wrongfully took and carried the same away. He need not have introduced a word about the attachment. This action the defendant might have defeated by showing that he had seized the same under the writ of attachment, obtained judgment thereon and sold. Although that judgment may have been irregularly obtained, and the proofs insufficient to justify its rendition, or absolutely false, it was not assailable in a collateral proceeding. It would have been a complete defense to the action of trover. Whereas, the amended petition set up the proceedings in an attachment suit, and sought to avoid the legal effect of the judgment therein, not by assailing it as void, but by averring that the suit ivas without probable grounds, and was malicious in its inception. True, the two petitions applied to the same prop
In Newton v. Allis, 12 Wis. 378, an action to recover damages for flowing the plaintiff's land, he was not permitted-to amend so as to charge the defendant, under the statute, for appropriating the land to his own use. It was a substitution, and so is this. While the courts in observing the spirit of the code, should be liberal in allowing amendments, yet it should be in furtherance of justice, and not Beget laxity in pleading, by encouraging attorneys, without consideration of what they want and how to sue for it, to state anything as a case, on the reliance that after-wards when they find out what they want they may substitute a new cause of action and call it an amended petition.
The examination I have made of cases, where like questions have been before the appellate courts, and the party complaining has secured reversal, shows that it is where he has stood on his motion. I am of opinion that the better rule to establish touching the practice in this respect, would be to regard the error as waived where the party goes to trial on the merits of the amended pleading. He ought not to make the court a place of chance, and appeal only when he has failed on another accepted issue.
The language employed in this instruction is inapt. Malice does not result as matter of law, from the want of probable cause. The absence of such cause may be so palpaable and the attendant circumstances of suing out the writ such, that the jury may infer the existence of the malice from the want of probable cause. But to tell the jury they are “ authorized ” to conclude there was malice from the want of probable cause, was calculated to mislead, and liable to abuse in argument. It is not improbable, as suggested by counsel, that had it been directly coupled in the jury’s mind with succeeding instructions it might have, been harmless. But it is not safe in a series of instructions to trust largely to the continuity in reasoning, and the logical analysis of “ the panel of twelve.” They are liable to be misled by the assertion of apparently distinct propositions in separate instructions, which might to the professional mind be cognate and harmonious. The relation of one instruction to another ought to be so near that their connection and meaning would be obvious. The safer course in this case would be to follow the character of instruction commented on in Sharpe v. Johnston, supra, 576.
If the proposition of law thus announced were otherwise correct the instruction is objectionable in that it seems to assume as a “ fact that the plaintiff' at that time'was a resident of the State of Missouri.” This was a fact in dispute, and as such should not be even colorably assumed in an instruction.
It is certainly carrying the law of agency to extreme length to hold in an action of tort that a principal is bound by the uncommunicated notice and knowledge had by a special agent. The responsibility attached to the principal for the agent’s knowledge and information appears, from the cases cited and the texts on the subject, to adhere in matters arising ex contractu. A principal is not answerable for the torts of his agent, unless he has authorized them or reaped the benefit from them, (Whart. on Agency, § 540, and citations.) Suppose the agent was authorized to sell goods for the plaintiff and collect debts arising therefrom. This would not make the principal liable for the malicious jirosecution by the agent of a claim for goods sold. His agency did not authorize the employmeht of unlawful means in such collections. The agent himself would be the only party liable to damages in such case, unless it could be shown that the principal authorized the act or ratified it in some way. Whart. on Agency, § 476, 477. Prof. Minor, in his treatise on Common and Statute Law, (I Minor’s Institutes, p. 219) says : “The master is in general liable in an action ex contractu, but not in an action of tort.” See Udell v. Atherton, 7 Hurlst. & N. 172.
The action is against this defendant for his malicious trespass. Both want of probable cause and malice must concur to authorize a recovery. If the jury may infer the existence of the malice from the entire absence of probable cause for swearing out the attachment, and the agent knew, but not the master, that there was no cause for it, the doctrine of the instruction might produce the solecism of a verdict for damages against the latter although he was not actuated by malice at all.
A more satisfactory argument against the doctrine of this instruction is this: as both malice and the want of probable cause must exist to authorize a recovery, and the malice can only be that of the party sued, as it is an emotion of the person, it must result that no information of a mere agent, unknown to the principal, can form the basis of an action against him in such a case as this unless it further appears that the principal, by the exercise of that diligence which a prudent and careful.person ordinarily exercises under like circumstances, might have obtained the information by timely inquiry of such agent.
Without reviewing the authorities on the requisites of an acquired domicil, as the case is to be retried, I think it proper to suggest in lieu of the instructions asked and refused on this branch of the case, the following, as applicable under the evidence: A mere residence of a temporary nature with no present purpose of an established abode is not sufficient to constitute a person a resident of this State. But if the jury should find from the evidence that the plaintiff had left Wyandotte, and brought his household goods to Kansas City, Mo., and there took lodging with the intent then formed of making his home in this' State without a present intention of removing therefrom, this would constitute the plaintiff a resident of this State from the time he so moved into the State.
The judgment of the court- is reversed and the cause remanded for re-trial in conformity with this opinion.