Jordan v. Chicago & Alton Railway Co.

79 S.W. 1155, 105 Mo. App. 446, 1904 Mo. App. LEXIS 596

Opinion

REYBURN, J.

(after stating the facts as above).

—1. The statutory provisions governing amendments are very liberal in this State and are intended to cure defects "of form and in many instances upon timely ap plication, to afford relief against, and permit many corrections of errors of substance. But the section, 657, invoked in support of the action of the lower court, excludes and in terms prohibits amendments which substantially change the cause of action or defenses thereto even before judgment; and thereunder a party can not be permitted to substitute a different cause of action in an amended petition from that set forth in the original petition. Heman v. Glann, 129 Mo. 325.

Herein the original petition declared upon a cause of action against one corporation, and the amended petition recited a cause of action against a. different corporation of a similar corporate name. When the original defendant filed its answer, the action of respondent was in effect an admission of the facts therein pleaded in abatement; it then became apparent that in bringing suit against the owner, formerly operating the railroad and lessor of the present defendant, the wrong party had been brought into court and the cause of action, if any existed, was against the lessee and successor in the conduct and control of the railroad whose agents and servants’ actions were the subject of complaint. Had plaintiff, on discovering the error, dismissed as to the defendant first named, it is manifest that the court would have been powerless to permit an amendment of the petition naming as defendant therein the present appellant, and bring the latter into court without a writ of summons against it by name, yet in substance and effect, no different situation would under such condition have been presented than is now exhibited here. The defendant against which the action was brought and the process of court was directed, appeared and presented reasons which, if established or conceded, precluded the further successful prosecution of the action; and plaintiff recognizing the force of the defense presented, abandoned the proceeding against the defendant appearing and invoked the aid of the court to interpose another and different corporation as defendant to the action already pending, in lien of the defendant then before the court. No cause of action was contained in the original petition against the substituted defendant, nor was any recovery possible against it thereunder and it would seem plain, therefore, that if the plaintiff intended to prosecute the action against the new defendant, legal process issued against it and service thereof according to law were as essential prerequisites as the amendment of the allegations of the complaint to comprehend the defendant and to bring it within the jurisdiction of the court. The appellant was not before the court, either by service of summons or by voluntary appearance, the only two methods by which personal jurisdiction can be lawfully obtained. A change of defendants was such a substantial change of the plaintiff’s claim as to constitute a new action, and an amendment of the original petition for such purpose is not warranted by the law of amendments and should not be tolerated.

In the case of Green v. Supreme Lodge, etc., 79 Mo. App. 179, to which we are referred, the defendant’s full corporate name was not recited, and the plaintiff was merely permitted to perfect it by amendment. The authority is not in point in support of the power of amendment extending to the length of substituting another defendant in lieu of the defendant answering and before the court. If the railway company was the corporation in truth and in fact sued and the summons was actually served upon its agent, in such event upon due proof of those facts, the action of the lower court might have been justified; but the court was not- warranted in assuming the truth or existence of.the averments of plaintiff’s motion to amend without proper proof and erred in sustaining it without hearing testimony.

2. The appellant had reserved and insisted on its rights throughout to plead to the jurisdiction and ex pressly appeared specially for that purpose, nor was it put upon the election at its peril, after the plea in abatement and motion to quash had been overruled, to abide by such action and decline to plead over, or by pleading in bar waive its rights in abatement and proceed to trial upon the merits. By reserving its plea to the jurisdiction in the answer, its rights were preserved and not waived thereto by pleading to the merits. The rule is not uniform and varies in other jurisdictions; but in this State under the latest decision of the Supreme Court, a defendant may unite in the same answer, matter in abatement with matter in bar. Christian v. Williams, 111 Mo. l. c. 443.

It follows, therefore, that after the adverse ruling of the court upon the objection to the illegality of the service, defendant expressly reserving all right to such objection did not abandon the plea in abatement by answering to the merits and going to trial thereon, and especially would such position appear tenable and reasonable where, as in this State, the right of appeal is not conferred from an order of the trial court overruling the plea in abatement. Cyclopedia of Law & Procedure, vol. 1, Abatement & Revival, pp. 130, 136 and cases cited. Johnson v. Detrick, 152 Mo. 243.

3. The evidence disclosed that the defendant had employed a special agent to investigate, at directions of its superintendent, losses occurring of its property and after preliminary examination and inquiry, such agent made an affidavit upon which an information was prepared by the prosecuting attorney of Audrain county, and a warrant charging plaintiff, now deceased, with petit larceny issued by a justice of the peace before whom a trial resulted in acquittal of the accused. It has been held repeatedly by the Supreme Court of this State that malice and want of probable cause are both essential elements, Which must concur in an action for malicious prosecution, although, the former may be an inference from the proof of facts establishing want of probable cause. “In order to support such an action as that of the case at bar, two ingredients must come-together: first, malice on the part of the prosecutor:: second, want of probable cause for the prosecution. Absent either of these, the action for malicious prosecution fails. But when you establish proof of want of probable cause, then the jury may infer malice from the facts which go to make up such proof of such want. And where there is affirmative proof of the want of probable cause, then a defendant can be called on for his defense.” Stubbs v. Mulholland, 168 Mo. 47. Again, “It is a proposition too well settled to require the citation of any authorities in its support, that the existence of malice and the want of probable cause are both necessary to the maintenance of an action for malicious prosecution. They are distinct and essential ingredients of this private wrong. If there be reasonable-or probable cause, no malice, however distinctly proved, will make the defendant liable. The proof of malice does not establish the want of probable cause, nor does the proof of want of probable cause necessarily establish the existence of malice. That is to say, malice-is not an inference of law from the want of probable cause. Malice, however, need not be proved by direct and positive testimony, but may be inferred from the-facts which go to establish the want of probable cause; and this is all that is meant when it is said that malice may be inferred from the want of probable cause.” Sharp v. Johnston, 59 Mo. 557.

We do not deem it necessary to summarize the facts exhibited by this record, but consider it sufficient to state that there is abundant and conclusive proof of' probable cause, and that the special agent of defendant, in making the affidavit acted cautiously, wholly without malice toward the accused, who was unknown and a stranger to him, but with a reasonable and justifiable- belief and upon probable canse of tbe guilt of tbe accused, a belief shared by tbe prosecuting attorney as shown by tbe latter in preparing and filing tbe information. The verdict is wholly unsupported by tbe evidence, tbe demurrer to tbe evidence should have been sustained and tbe judgment is accordingly reversed.

Bland, P. J., and Goode, J., concur.