CONCURRING OPINION. The main opinion denies recovery of the $750 punitive damages awarded by the jury, the ground of such denial being that malice is not pleaded in the amended petition on which the trial was had. It is true, the word "malice" was not used in the amended petition. But it seems to me that sufficient facts were pleaded from which malice in law necessarily appears. The sufficiency of a petition must be determined from the substance thereof and not by the legal verbiage to be found therein [Burns v. Ins. Co. of Pa., 224 S.W. 96.]
After alleging that plaintiff is and was at all times a resident of Jackson County, Missouri, the petition stated that:
Plaintiff "was arrested at his home by members of the Metropolitan. *Page 681 Police Department of Kansas City, Missouri, and by these defendants, all without legal warrant of arrest and under protest; that such arrest was, as a direct result of a charge, order, request, inducement or instigation of the defendants' agents and servants, and each of them, by and through their manager and agent, all concurring and jointly cooperating. . . .
"By reason of such inducements and instigations by these defendants, their agents and servants, concurring and jointly cooperating, he was imprisoned from October 20, 1931, and at considerable expense, inconvenience and anxiety and humiliation to himself and under the orders and commands of these defendants, police officers and courts, until October 26, 1931. . . .
"Said arrest, imprisonment and restraint as aforesaid was as a result of a charge, order, request, inducement and instigation of the defendants, their agents and servants, concurring and jointly cooperating; that said defendants, their agents and servants, did arrest and charge this plaintiff with a wrongful act purported to have been committed by him and that said defendants concurrently and jointly cooperating did cause his arrest and detention and imprisonment as aforesaid, with great mental anguish, anxiety, humiliation, mortification, physical and mental suffering, profound nervousness and injury to his health and character, shame and embarrassment before his friends and neighbors, was compelled under arrest to repeatedly return to said police station and to the custody of the law and was placed in and compelled to go through what is known as the `show up,' being viewed by officers and many other persons, being compelled to procure bonds and to engage counsel and to incur necessary expense and outlay in an effort to obtain and protect his legal rights in amounts aggregating two hundred fifty dollars special damages; and that he still suffers shame and embarrassment before his friends and neighbors and that his previous good standing in the community in which he lived and labored for his livelihood and among those with whom he had mingled, has been greatly impaired all because of the aforesaid wrongful acts of defendants and their duly authorized officers and agents acting in the scope and performance of their duties. . . .
"Said order, request, charge, inducement or instigation and acts of the defendants and each of them concurrently and jointly cooperating were grossly unjust and unfounded as aforesaid; that said arrest and imprisonment was without warrant or authority of law and that said acts were high-handed and oppressive and without any charge being filed or made against him in any court, and as such entitled this plaintiff to punitive damages in addition to other damages suffered and incurred in the additional sum of . . .," etc. (Italics mine.) *Page 682
No objection to, or attack, was made upon the petition. And punitive, as well as actual, damages were asked therein.
The petition is not required to use the words "malice" or "maliciously" in order to include a charge of malice so as to support a verdict for punitive damages. In this case the acts charged were that defendants accused plaintiff of theft (perse a criminal, shameful and dishonest offense), and had him arrested without authority of law, such charge being unfounded and the arrest grossly unjust, and said arrest and imprisonment were without warrant or authority of law, high-handed and oppressive and without any charge being filed or made against him in any court, entitling plaintiff to punitive damages in addition to the other damages suffered, for which judgment is prayed. It seems to me that this is sufficient to charge defendants with intentionally doing a known wrongful act. Even if one does an act for which probable cause exists, yet he may do it in such a high-hand, oppressive and grossly unjust, manner as to reveal malice in that way. [Hutchinson v. Sunshine Oil Co., 218 S.W. 951.]
The case of Mooney v. Kennett, 19 Mo. 552, cited in support of the ruling made in the majority opinion, was one in which the plaintiff was arrested for an alleged violation of a cityordinance (possibly leaving his truck in the street). It was not a criminal offense, or one involving moral turpitude or shame. His accuser might honestly think a violation of law had been committed and have no malice. Hence knowingly causing his arrest would not, of itself and without more, show malice, but facts must be alleged in addition to that in order to allege malice. In the cited case, no ordinance was pleaded nor proved. It had to be pleaded in order to get into the record, since the court will not take judicial notice of a city ordinance. Nor was there pleading or showing that plaintiff had been acquitted. The case was reversed in its entirety, not because of any mere failure to plead a case for punitive damages. I do not deem it in point under the circumstances in the case at bar.