Boogher v. Hough

• Citation: 12 S.W. 524,99 Mo. 183
• Parties: Boogher, Appellant, v. Hough et al
• Decision Date: 02 December 1889
• Court: United States State Supreme Court of Missouri

12 S.W. 524

99 Mo. 183

Boogher, Appellant, v. Hough et al

Supreme Court of Missouri

December 2, 1889

Appeal from St. Louis City Circuit Court. -- Hon. A. M. Thayer Judge.

Reversed and remanded.

W. C Marshall for appellant.

(1) It is not intended in this case to controvert the general proposition that a conviction in the lower court is conclusive evidence of the existence of probable cause, even though the conviction be afterwards set aside on appeal. (2) What we do contend for is that, if it is alleged and proved that the conviction was procured by unfair means, or by fraud, such acts countervail the conclusiveness of the conviction, and entitle the plaintiff to recover. Welch v. Railroad, 19 Reporter, 668; 14 R. I. 609; Burt v Place, 4 Wend. 591; Johnson v. Emerson, 6 Exch. 329.

Krum & Jonas, E. T. Farish and Paul F. Coste for respondents.

(1) A judgment of a court of competent jurisdiction in favor of plaintiff, though afterwards reversed, is conclusive evidence of probable cause for instituting this suit. (2) A verdict of guilty in a criminal prosecution, though obtained by false testimony and afterwards set aside for newly-discovered evidence, and a verdict of not guilty returned, is conclusive evidence of probable cause in a subsequent action for malicious prosecution. Parker v. Huntington, 7 Gray, 35; Parker v. Farley, 10 Cush. 279. (3) As a general rule, in an action for malicious prosecution, the fact, that, in the prosecution complained of, the plaintiff was convicted, is conclusive evidence of probable cause. The only exception to the rule is the case in which plaintiff sets up that his conviction was fraudulently procured by the defendant by means which prevented the plaintiff from setting up his defense. Miller v. Deere, 2 Abb. N. Y. Prac. 1; Burt v. Place, 4 Wend. 591. The above authorities are the only ones that make this distinction, and it will be noticed the fact was that defendant in the prosecution was entirely prevented from making a defense. By another group of decisions it is said: "Such conviction is conclusive evidence of probable cause, unless it was obtained chiefly or wholly by the false testimony of the defendant." Witham v. Gowan, 2 Shepl. 362; Payson v. Coswell, 9 Shepl. 212; Ulmer v. Leland, 1 Greenl. 135; Reynolds v. Kennedy, 1 Wils. 232; Goodrich v. Wamer, 21 Conn. 432; Palmer v. Avery, 41 Barb. 290.

Ray, C J. Barclay, J., not sitting.

OPINION

Ray, C. J.

-- Plaintiff brings this action against defendants for a malicious prosecution. It appears that plaintiff had been formerly jointly charged with one Taylor in an information for criminal libel, and that upon a trial thereof plaintiff was convicted in the lower court, but that upon appeal the judgment was reversed for error in law, and plaintiff discharged. See 71 Mo. 631.

In the present action, the court gave, at the close of the evidence for plaintiff, the instruction non-suiting plaintiff, who, failing in his motion to set the same aside, has appealed to this court. The conviction above referred to appears on the face of the amended petition in the present suit, and ordinarily at least this would be conclusive evidence of the existence of probable cause, although the same may have afterwards been reversed on appeal, and the party discharged. See cases cited in briefs of counsel.

The plaintiff, however, further alleges that his said conviction was procured by the fraudulent practices and abuse of legal process on the part of these defendants in this: That defendants caused said Taylor to be joined with plaintiff in said information for the fraudulent and wrongful purpose of depriving plaintiff of the testimony of said Taylor, well knowing that Taylor would be the principal witness, on whom he would rely to prove the facts said Taylor was expected to prove, which said testimony of said Taylor is set out in the amended petition herein in substance, that he (Taylor) wrote and prepared, and caused to be filed with the insurance department of this state, the instrument containing the libellous matter charged in said criminal information, and that this plaintiff Boogher did not write, prepare, suggest, aid or assist him herein.

The amended petition also further charges that the defendants directed the officers not to arrest said Taylor, and that he was not prosecuted on said charge, and that upon plaintiff's said trial compulsory process to detain and secure the attendance of said Taylor as a witness in his behalf was denied plaintiff by the trial court, at the instance and upon the objection of defendants that said Taylor, being a co-defendant, was not a competent witness for plaintiff.

These allegations, that the former conviction was thus obtained by the fraud and unfair means alleged, we think sufficiently obviate and countervail the force and effect of plaintiff's admission in his amended petition, that he was convicted of said charge as aforesaid. The pleading is to be taken in its entirety. The fraudulent and oppressive acts charged to have been committed by defendants, to procure the judgment, overcame the force and effect which the judgment would otherwise have. Burt v. Place, 4 Wend. 591.

Again defendants also assail in this, as in the lower court,...