Opinion
No. 28251.
April 17, 1951. Rehearing Denied May 18, 1951.
APPEAL FROM THE CIRCUIT COURT, ST. LOUIS COUNTY, RAYMOND E. LaDRIERE, J.
A. A. Gieringer, plaintiff-appellant, presented his own case.
Moser, Marsalek, Carpenter, Cleary Carter, Lee M. Carter, St. Louis, for respondents.
This appeal was transferred to this court by the Supreme Court of Missouri which held that it was without jurisdiction of the appeal. The action is for five thousand dollars damages arising out of an alleged malicious prosecution and was brought against defendant Kilgore, a state highway patrolman, and his surety. A motion to dismiss the action was sustained and the plaintiff appealed.
This is one of a number of suits brought by the plaintiff seeking damages for false arrest and malicious prosecution. The first of these actions brought arose when the plaintiff was detained for questioning by police officers by the names of L. Delno Silver, F. D. Hagan, E. F. Dampf, and R. D. Kalgore, in connection with a burglary of the Rozier store in Farmington, Missouri. This detention took place on October 20, 1941. The plaintiff brought suit for false arrest against all of the officers and later recovered a judgment for $1,800, which was paid.
On November 8, 1941, he was again arrested on a warrant issued by a justice of the peace, charging him with grand larceny, and later discharged on preliminary hearing. He contended that the warrant was maliciously obtained by the same four police officers and brought suit to the November term, 1944, of the Circuit Court of St. Franois County, against Silvey, Hagan, Dampf, and Kilgore charging them with malicious prosecution.
This case was tried in September, 1948, and resulted in a final verdict and judgment for the defendants. Shortly after filing the last mentioned suit for malicious prosecution the plaintiff filed three other suits. Each of these alleged the same acts of malicious prosecution arising out of the issuance of the warrant. One is against E.F. Dampf and the Fidelity and Casualty Company of New York, his surety; another is against L. D. Silvey and two individual sureties; and the third is against R. D. Kilgore and The Fidelity and Deposit Company of Maryland, his surety.
The suit under consideration here is the one against R. D. Kilgore and The Fidelity and Deposit Company of Maryland, last mentioned. It went on change of venue to St. Louis County and there the defendant moved to dismiss it on the ground that the cause of action pleaded had been fully adjudicated in the suit in St. Francois County against the four police officers. The motion was sustained, and it is from this order of dismissal that the plaintiff appeals.
Plaintiff had a number of lawyers throughout the litigation in which he was engaged, but he appeared in the circuit court and appears here as his own attorney. His brief does not conform to the rules but it is obvious that he sincerely believes that he has not had due legal redress for the wrongs that he has suffered. For this reason, and, regardless of the insufficiency of the brief, the record before us has been examined with particular care. It discloses that the suit against the four police officers for malicious prosecution was tried and disposed of by a final judgment in the circuit court of St. Francois County. It was a suit for damages and the same cause of action that the plaintiff seeks to enforce in this case against one of those officers and his surety.
In Scheurich v. Empire District Electric Co., Mo.Sup., 188 S.W. 114, loc. cit. 117, the Supreme Court stated: "It is hornbook law that to successfully invoke a plea of former adjudication four conditions must concur, viz.: (1) Identity of the thing sued for; (2) identity of the cause of action; (3) identity of the persons and of parties to the action; and (4) identity as to the quality of the person for or against whom the claim is made." See, also: Norwood v. Norwood, 353 Mo. 548, 183 S.W.2d 118; Rossi v. Davis, 345 Mo. 362, 133 S.W.2d 363, 125 A.L.R. 1111.
The identity of the thing sued for is the same in this case as it was in the case adjudicated in St. Francois County, for in both cases damages were sought for the humiliation, shame, and nervousness caused by plaintiff's prosecution. There was only one warrant issued for the plaintiff, which he claims was maliciously procured, and his petition in this case alleges the same acts of malice as those alleged in the suit in St. Francois County. Therefore, the identity of the cause was the same. The parties are the same in the two suits as far as Kilgore and plaintiff are concerned, and there is no contention that there is any difference. The only differing feature is that this suit does not join defendants who were joined in the other suit and it does join Kilgore's surety as a party.
The surety was on Kilgore's bond for the faithful performance of his duties and it is joined in the petition on the theory that it is liable by reason of Kilgore's breach of duty. It is unquestionably true that the surety is not liable unless the liability of the principal is established and that the extent of the surety's liability is measured by the liability of the principal within the terms of the surety contract. The relationship of principal and surety was fully discussed by this court in the recent case of State ex rel. and to Use of Scarborough v. Earley, 240 Mo.App. 868, 219 S.W.2d 879, 882, wherein we said:
"It is a fundamental rule that the liability of a surety is measured by the liability of the principal. (Citing cases.)
"Also, where the liability of one defendant is a primary liability to answer in damages for his own acts, and that of the other is purely a derivative liability, such as that of a surety or a master liable under the doctrine of respondent superior, the amount recovered as against the one primarily liable is the limit of the amount recoverable against the person whose responsibility is solely derivative. (Citing cases.)"
Since the surety's liability is "purely derivative", its addition as a defendant did not alter the fact that the suit was between the same parties. This brings the present action within all of the required factors for the application of the doctrine of res judicata.
Plaintiff's cause of action has been fully tried and adjudicated by the prior suit in St. Francois County and it is the recommendation of the Commissioner that the judgment of the trial court be affirmed.
The foregoing opinion of WOLFE, C., is adopted as the opinion of the court.
The judgment of the circuit court is accordingly affirmed.
ANDERSON, P. J., and McCULLEN and BENNICK, JJ., concur.