Plaintiff, Christian H. Wehrman, sued to recover actual damages of $4,000 and punitive damages of $15,000 from defendants Liberty Petroleum Company, Inc. and Wilford Brown for causing him to be falsely arrested. The jury returned a verdict against both defendants for actual damages of $100 and punitive damages of $7,500, judgment was entered in conformity therewith, and after unavailing after-trial motions the defendants appealed.
The numerous points and sub-points raised by defendants comprise most of the grounds of appellate review. They contend that error was committed in overruling their motions for a directed verdict at the close of all the evidence; in the giving of certain instructions on behalf of the plaintiff; in the refusal of instructions offered by the defendants; and in the admission of certain evidence. Lastly, they complain that the verdict for $7,500 for punitive damages is excessive.
Defendants’ initial contention requires a review of the evidence most favorable to plaintiff. Defendant Liberty Petroleum Company, Inc., whose home office was in Mount Vernon, Illinois, owned and operated a filling station, designated as No. 15 in its chain, at Hebert and Florissant Avenues in the City of St. Louis, Missouri. Defendant Wilford Brown was the manager of the station. Plaintiff, then a salesman for a hearing aid company, was a customer. On September 30, 1957, about 9:00 A.M., plaintiff stopped at the station on his way downtown to his office and had his tank filled with gasoline, for which he paid $4.60 in cash. Around 11:00 A.M. he left his office, obtained his car from the lot where it had been parked, and started to' drive home for lunch. Plaintiff experienced trouble with the motor, which repeatedly died, and by the time he reached Delmar Avenue his battery was dead. His automobile was pushed into a nearby filling station where the primary trouble was diagnosed by the attendant as water in the gasoline. The fuel pump was cleaned, part of the gasoline was drained from the bottom of the tank, a can of Heet was put into the tank to cut any water remaining in the gas *59 oline, and the battery was charged, for which services plaintiff paid $4.50. Plaintiff then drove to Liberty Petroleum’s station where he complained to Brown that the gasoline he had purchased there had contained water. Brown said he knew it had, because he had found water in his own gasoline taken out of the same tank, and because another customer had already been in to complain. Plaintiff pointed out that he had had $9.10 of expense ($4.60 for the gasoline and $4.50 for the service to his car), and Brown stated that he would take plaintiff’s name, address and phone number and have the company mail him a check.
On two occasions that afternoon plaintiff •experienced further trouble in starting his •car, and spent an additional $4.05 for services and cans of Heet. Sometime between October 2 and October 11, plaintiff went hack to Liberty Petroleum’s filling station •and informed Brown of his further difficulties and his additional expenses. Brown told plaintiff that he had been authorized to pay the $9.10 in cash, but in view of the further expense that plaintiff should write to James Dohono, Brown’s superior at Liberty Petroleum’s office, so that one check •could be made out for the entire amount. Brown thereupon wrote out Dohono’s name .and the company’s address, in Mount Vernon, Illinois, on a slip of paper and gave it to plaintiff. Plaintiff wrote Dohono, as Brown had suggested, and advised Dohono that he would call at the station on October 16.
Plaintiff received neither a check nor any reply, and on October 16, 1957, about 9:00 A.M., he drove in to the station to talk to Brown. The latter was waiting on another customer but called to him, “ * * * T will be right with you, Mr. Wehrman.’ ” While waiting, plaintiff was approached by another attendant and asked if he needed gas. Plaintiff replied that he didn’t have time, but when the attendant said that Brown would be busy for some time, plaintiff stated he might as well get his car filled up. Plaintiff backed his car up to the pump and the attendant put in gasoline and oil amounting to $2.65. Thereafter Brown approached plaintiff, asked plaintiff if he had heard from the company, and when plaintiff answered “No,” Brown said that he was not going to hear from it because the company was not going to pay plaintiff a cent. Plaintiff rejoined that he didn’t understand, and Brown then stated that plaintiff would never prove that they were the ones who sold him the watered gasoline. Plaintiff at first thought Brown was joking, but when he realized that Brown was serious, inquired whether Brown wanted him to get a lawyer. Brown answered that plaintiff should get a half dozen lawyers, that plaintiff would not spend three or four hundred dollars to collect thirteen or fourteen dollars. In an effort to change Brown’s mind, plaintiff suggested to Brown that a customer waiting at another pump be told of the controversy and his reaction obtained. Brown told plaintiff to go ahead, that it wouldn’t do him any good. Plaintiff and Brown approached the customer, and plaintiff explained about his bills, but the customer said that he didn’t want to get mixed up in the matter.
Brown thereupon told plaintiff that he would never get paid, and demanded payment of $2.65 for the gas that had been put in plaintiff’s car. Plaintiff replied that he hadn’t come in to buy, that the sale had been solicited, that if Brown wanted the gas he could drain it out of his tank, or that Brown could deduct the amount from what was owed plaintiff. Brown refused to drain the tank, stated that he wasn’t running a charge account, and that if plaintiff didn’t pay he would call the police. Plaintiff said that Brown didn’t have to call the police, that he would call them. Brown warned him not to put one foot in the office, and plaintiff again told Brown to call the police, that he would wait. Brown’s answer was, “ * * * ‘I’m telling you for the last time it’s pay or get off.’ * * * ” Plaintiff said, “ * * * ‘Well, I’ll get off.’ * * ” and as he was driving away plaintiff told Brown that his car would be parked at *60 Eighth and Market Streets. According to plaintiff, Brown comported himself throughout in an aggressive and nasty manner.
Brown telephoned the police'as soon as plaintiff drove away. Officer Hamlin and another policeman, not identified, came to the filling station in answer to Brown’s telephone call. Hamlin, whom Brown knew as a customer of the station, was the one who talked to Brown about the matter. By the time the trial was held Hamlin had died. The only evidence as to what Brown told Hamlin was extracts from Brown’s deposition, which plaintiff read to the jury over defendants’ objections. Since no error is assigned for review with reference to the admission of such evidence we accordingly consider it as if it came in without objection. Myers v. Karchmer, Mo., 313 S.W.2d 697, 708. According to Brown, all that he told Officer Hamlin was that a man came in to the station, made a purchase, refused to pay for it, and drove out • without paying. Brown, whose not infrequent answers on both direct and cross-examination were, “I don’t remember that,” testified on direct examination that he gave Hamlin information about the kind of car it was and its license number. On cross-examination he stated that he didn’t give Hamlin plaintiff’s name and address because plaintiff had never given them to him, but when pressed about plaintiff’s prior complaints of watered gasoline, recalled that plaintiff had given such information to him but that he had sent it to the company.
Hamlin’s report (not introduced in evidence) reached Detective Thurman, who traced the automobile license number to plaintiff. Plaintiff was arrested at his home by Thurman and Detective Aikens on October 19, 1957, about 8:30 A.M. Thurman advised plaintiff that he was arrested for larceny under fifty dollars. Plaintiff was taken in a police car tq the Fifth District police station at 1901 Penrose Avenue, . where he was booked under the same charge. Thurman then contacted Brown, and after plaintiff had been at the station about 10 or 15 minutes Brown arrived. According to plaintiff, the detectives asked Brown “* * * if I was the man” and Brown answered, “Yes.” Plaintiff testified that the detectives questioned Brown, and that Brown finally decided he would pay plaintiff if plaintiff would give him a receipt. Plaintiff agreed to give Brown a receipt provided that he obtained a copy. Brown paid plaintiff $9.00, prepared a receipt and a copy thereof, and plaintiff signed it. The copy, which was read to-the jury, was as follows:
“October nineteen, 1957,1 paid out to Mr. Wehrman nine dollars. The amount he paid for the purchase price of the Ethyl, gas purchase. Also repair bills for removal of water from tank. Total pay nine dollars. Liberty Petroleum Company. Wilferd Brown. Received payment 10-19-57. C. H. Wehrman.”
Plaintiff insisted that he did not pay Brown $2.65 for the gasoline and oil he had obtained on October 16, and denied Brown’s, testimony that each had paid the other. Following the payment to him by Brown,, plaintiff was released. Detective Thurman testified that as a matter of routine a warrant was thereafter applied for and refused.
As plaintiff points out, in determining whether plaintiff made a submissible case we need not concern ourselves with the question of whether the arrest in question: was lawful, nor with the issue of agency,, for defendants do not raise either of those-propositions. Defendants’ sole contention: is that, as a matter of law, Brown did not cause the arrest of plaintiff. The long-established rule in this state is that in order to make a submissible case for false arrest: it must appear that the defendant caused or procured the arrest of the plaintiff, Heinold v. Muntz T. V. Inc., Mo.,
“We have said that ‘instigate’ means ‘to stimulate or goad to an action, especially a bad action’; and that ‘one of its synonyms is “abet,” which “means, in law, to aid, promote, or encourage the commission of an offense.” ’ State v. Fraker,148 Mo. 143 , loc. cit. 165,49 S.W. 1017 , 1022; this definition has been followed in a malicious prosecution case, Hughes v. Van Bruggen,44 N.M. 534 ,105 P.2d 494 , * * *»
And the defendants’ instigation of the arrest may be shown by either direct or circumstantial evidence. Thompson v. Fehlig Bros. Box & Lumber Co., Mo.App.,
Defendants argue that all Brown did was to give the police information of the occurrence, and point to a line of cases, beginning with the decision of this court in 1877 in Lark v. Bande,
In the instant case, had Brow» fully reported to the police
all
of the facts-known to him we would have no hesitancy in holding that any arrest which followed could not be said to have been instigated by him. But Brown’s own testimony, as-well as that of plaintiff, shows that the-information which Brown gave to the police was incomplete, inaccurate, and highly misleading. According to Brown, all that, he told Officer Hamlin was that a maní came in to the station, made a purchase,, refused to pay for it, and drove out without paying. He did not tell the officer that he knew the man, or his name, although
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according to plaintiff Brown had called him by name when plaintiff drove in that morning. Nor, according to Brown’s own testimony, did he tell the policeman any of the other facts concerning the dispute. He did not tell of the water in the gasoline previously purchased by plaintiff; of the admitted indebtedness of $9.10 owed plaintiff; of the argument regarding whether the $2.65 purchase should be charged against the amount owed plaintiff; of plaintiff’s offer to allow Brown to remove the gasoline from plaintiff’s tank, and his (Brown’s) refusal to do so; of plaintiff’s offer to call the police, and his refusal to allow plaintiff to do so; of his order to plaintiff to leave the station; nor of plaintiff’s advice, as he left, regarding where his car would be parked that day. The jury could find that by knowingly giving the police such incomplete, biased and misleading information Brown instigated plaintiff’s arrest, and the court, therefore, did not err in overruling defendants’ motions for a directed verdict. Wright v. Automobile Gasoline Co., supra; Knupp v. Esslinger, supra; Steiner v. Degan, Mo.App.,
Under two points and various subdivisions in their joint brief defendants raise several charges of error regarding plaintiff’s instruction No. 1. That instruction read as follows:
“ ‘The Court instructs the jury that if you find and believe from the evidence that the defendants did unlawfully cause plaintiff to be arrested on the 19th of October, 1957, by police officers of the City of St. Louis, without warrant of law, if you so find, and to be carried by said police officers through the streets of St. Louis in a police conveyance to the police station and to be there held, if you so find, then your verdict shall be in favor of the plaintiff and against the defendants’ ”
Defendant Liberty Petroleum frankly concedes that there was evidence from which the jury could find that it was within Brown’s authority to call the police, but it complains that the instruction did not require the jury to find that Brown was acting within the scope of his employment in causing plaintiff’s arrest, if the jury found that he did so. If there was any uncertainty arising either from a conflict in the evidence or because the undisputed facts might lead reasonable men to draw different conclusions as to whether Brown was acting within the scope of his employment, then, of course, the question became one of fact to be settled by the jury; otherwise it was one of law for the court. De Mariano v. St. Louis Public Service Co., Mo.,
The second and third complaints regarding plaintiff’s Instruction No. 1 are that it was erroneous because it authorized a verdict for both actual and punitive damages without submitting malice, an essential element of punitive damages; and that it erroneously compelled a verdict as to punitive damages, as well as compensatory damages, and failed to inform the jury that the former are discretionary. The short answer to both contentions is that the instruction did not authorize or compel a verdict for any damages. That subj ect was covered in other instructions, which will be reviewed later.
Defendant's final claims of error as to Instruction No. 1 are that the lawfulness of the arrest was assumed, although that fact was a contested issue; that no facts were hypothesized from which the lawfulness or unlawfulness of the arrest could be determined by the jury; and that the phrase “ * * * and to be carried by said police officers through the streets of St. Louis in a police conveyance to the police station and to be there held, if you so find * * * ” was a circumstance in the case totally irrelevant for the purpose of liability. In an action for false arrest where, as here, the arrest is made without a warrant, the law presumes that the arrest was unlawful, and the burden of pleading the lawfulness of the arrest as an affirmative defense, and of proving it, devolves upon the defendant. Pandjiris v. Hartman,
Having considered all of the defendants’ complaints regarding plaintiff’s Instruction No. 1, we turn to those leveled at plaintiff’s Instructions Numbered 7 and 8, which read as follows:
“ ‘The Court instructs the jury that if you find in favor of the plaintiff under Instruction No. 1, then you are further instructed that if you find that in so causing the arrest of the plaintiff, if so, the defendants charged the plaintiff with the commission of larceny, if you so find, and that the plaintiff was not guilty of larceny, if so, and if you further find that the defendants caused such arrest maliciously and with intent to cause injury to plaintiff’s character and reputation, if you so find, then you may, in your discretion, in addition to the actual damages awarded plaintiff, if *64 any, allow him such further sum by way of punitive damages as you may find and believe from the evidence as will be a proper punishment to the defendants for such conduct, if so, and a proper -warning to others.’ ”
“ ‘The Court instructs the Jury that "the term “malice” as used in the instructions, does not necessarily mean actual ill will or spite, but means merely intentional doing of a wrongful act without just cause or excuse.’ ”
Defendants have intermingled their complaints regarding these instructions, but as hest we understand them the claims of error made are these: (1) the issue of punitive ■damages should not have been submitted to the jury since there was no substantial evidence that Brown acted maliciously; (2) the instructions did not submit any partic-ular act which the jury could find had been intentionally done; (3) the instructions permitted the jury to award punitive damages for any act committed between September 30, 1957 and October 19, 1957; and (4) the word “malice” was improperly defined. Of these, the last shall be first. Instruction No.
8
properly defined legal malice as the intentional doing of a wrongful act without just ■cause or excuse. Brown v. Sloan’s Moving & Storage Co., Mo.,
Defendants’ Point VII is that in two instances the trial court erred in admitting hearsay into evidence. The first occurred while plaintiff’s witness Thurman, the detective who made the arrest, was on the' stand. On redirect examination he was asked whether before he had arrested plaintiff he had read the “offense” or original report. He answered that he had, that it is given to the detectives to follow up. He was then asked whether the report contained a statement by Brown that he would prosecute in the event of an arrest. Counsel for defendants objected on the grounds that the question called for hearsay, and the objection was overruled. The witness then answered that there was a paragraph'stating that if he (Brown) could identify he would prosecute if an arrest was made. Of course the testimony as to what a report contained, which was prepared by another officer and not introduced, was hearsay and improperly admitted, over timely objection. However, on direct examination by counsel for the defendants Brown was asked whether he recalled telling the police, “ * * * that you would prosecute if the man was arrested. * * * ” His answer was, “ I don’t remember if I told him that or not.” Counsel then inquired “You don’t deny that, though?” and Brown answered, “No, I don’t.” Since the evidence improperly admitted related to a fact not disputed, the error was harmless. Lesch v. Terminal R.R. Ass’n of St. Louis, Mo.,
Defendants further charge that the court erred in refusing to give certain instructions offered by them. By their instruction G defendants sought to tell the jury that plaintiff was not entitled to recover and its verdict should be for defendants if it found that, “ * * * one of the attendants or Mr. Brown informed him (plaintiff) that if he left without paying cash they would notify the police, and that the plaintiff then told them, in effect, to go ahead and call the police, and then drove away from the station * * Defendant argues that, “This instruction properly submitted the defense of consent by the plaintiff to the subsequent arrest and detention by the police. * * * ” We think not. In the first place the instruction did not contain the words, “consent,” “arrest,” or “detention.” Nor would the evidence that plaintiff told the attendant or Brown “ * * * in effect, to go ahead and call the police * * * ” justify an inference that plaintiff thereby consented to his subsequent arrest and detention. If evidence that Brown merely called the police and fully reported all of the facts to them would not support an inference that he requested or instigated plaintiff’s arrest, as defendants contended, then surely evidence that plaintiff told Brown to go ahead and call the police would not justify an inference that plaintiff thereby consented to his subsequent arrest.
Defendants likewise complain of the court’s refusal to give their Instruction No. L. That instruction would have told the jury, in effect, that even if it found that plaintiff’s arrest was unlawful and that
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plaintiff had not committed a punishable offense, nevertheless if Brown had reasonable grounds to “suspect” that an offense had been committed for which plaintiff could lawfully be arrested, that Brown then had just cause or excuse for the arrest and neither Brown nor his employer could be required to pay punitive damages. The quoted word indicates the vice in the instruction. There is a sharp difference between a belief and a mere suspicion. Compare Leathers v. Sikeston Coca-Cola Bottling Co., Mo.App.
Defendants’ eighth and final point is that the verdict for $7,500 for punitive damages is excessive. While defendants cite various cases in which verdicts for punitive damages were held to be immoderate, they do not suggest or indicate what amount they consider would have been reasonable in this case, nor by what amount they believe the instant verdict to be excessive. The chief purposé of punitive damages, as its name suggests, is to inflict punishment; the rationale being that the punishment assessed is an example and a deterrent to similar conduct. Polk v. Missouri-Kansas-Texas R. Co.,
Regarding the factors of malice and contumacious conduct, we have already noted that according to his own testimony when Brown called the police he gave them an incomplete and misleading account of what had occurred. In our opinion defendants’ own evidence, if accepted, revealed scant justification for communicating with the police in the first place. According to Brown, the Corporate defendant had admitted an indebtedness to plaintiff of $9.10 for the watered gasoline, and had authorized him to pay that amount to plaintiff. Assuming that on October 16, 1957, plaintiff refused to *67 pay the $2.65 for the gasoline and oil with which his car had been serviced, and in the manner related by Brown, no reason appears why that amount could not have been treated as a credit against the greater amount defendant Liberty Petroleum owed plaintiff. Defendants did not introduce any evidence to controvert plaintiff’s testimony that he had never been arrested before, nor did they produce any evidence which impugned plaintiff’s previous good character and reputation. Plaintiff was arrested and taken to the police station in a police car, where he was booked, and while his restraint was not of long duration, the fact remains that, according to Detective Thurman, there is on file in the St. Louis Police Department a record that plaintiff was arrested for larceny, which “ * * * will remain there until the day he dies.” In that connection it is appropriate to recall what Shakespeare said in Othello (Act III, Sc. 3, Line 155) :
“Good name in man and woman, dear my lord, Is the immediate jewel of their souls; Who steals my purse steals trash; ’tis something, nothing; ’Twas mine, ’tis his, and has been slave to thousands; But he that filches from me my good name Robs me of that which not enriches him, And makes me poor indeed.”
It was stated in Jones v. West Side Buick Auto Co.,
The judgment should be affirmed, and the Commissioner so recommends.
PER CURIAM.
The foregoing opinion by DOERNER, C., is adopted as the opinion of this court. Accordingly, judgment is affirmed.