Smith v. Burrus

• Decision Date: 29 June 1891
• Citation: 106 Mo. 94,16 S.W. 881
• Parties: SMITH v. BURRUS.
• Court: Missouri Supreme Court

16 S.W. 881

106 Mo. 94

SMITH v. BURRUS.

Supreme Court of Missouri, Division No. 1.

June 29, 1891.

MALICIOUS PROSECUTION — EVIDENCE — SLANDER — PRIVILEGED COMMUNICATIONS.

1. The malicious institution, without probable cause, of a civil suit, gives defendant a right of action for malicious prosecution, though he was neither arrested nor his goods seized.

2. The voluntary discontinuance of a civil suit is not prima facie evidence that it was maliciously instituted.

3. In a suit for malicious prosecution, it appeared that defendant sued plaintiff for slander, and then dismissed the suit. The slander consisted in a charge of horse-stealing. Held, that in the malicious prosecution suit it was not necessary for plaintiff to prove, beyond a reasonable doubt, that the words were true, but that it was sufficient to prove their truth by a preponderance of the evidence.

4. A statement made by one voter to others that a candidate for public office had stolen horses is not privileged, and the person making the charge is liable to an action for slander, if the charge is untrue.

Appeal from circuit court, Marion county; THOMAS H. BACON, Judge.

Action for malicious prosecution. Burrus brought suit against Smith for slander, alleging that the latter bad charged him with stealing horses; but, after Smith had been thus put to the trouble and expense of employing counsel to defend the suit, Burrus, as he admitted in his answer, voluntarily dismissed the suit he had brought, and when on the witness stand testified: "I dismissed the suit voluntarily, because I wanted to." It appeared in evidence on the trial that, at the time the charges were made by Smith, Burrus was running for justice of the county court in the eastern district of Scotland county; and the charges were made by Smith, who himself lived in that district, to other voters; and that affidavits were read by others implicating Burrus as an accomplice with one Mayfield in larcenous operations in regard to horses. Mayfield, shortly before the election came off, was convicted and sentenced for five years to the penitentiary. There was testimony adduced at the trial which certainly had a strong tendency to show that the charges made by Smith were not unfounded, and there was some testimony of a contrary effect. The instructions, so far as necessary, will be quoted and noticed in the opinion. The jury found for the defendant, hence this appeal.

Harrison & Mahan and S. W. Birch, for appellant. R. D. Cramer, John C. Moore, and McKee & Jayne, for respondent.

SHERWOOD, C. J., (after stating the facts as above.)

1. At the outset of the examination of the case at bar we are met by the preliminary question whether the facts stated in the petition constitute a cause of action. This point under our Civil Code of Procedure is always open to examination even in an appellate court, and, like the jurisdiction of the court over the subject-matter of the action, is never waived, and may be taken advantage of for the first time on appeal. Rev. St. § 2047; Sweet v. Maupin, 65 Mo. loc. cit. 72; McIntire v. McIntire, 80 Mo. loc. cit. 473; Walker v. Bradbury, 57 Mo. 66. The authorities are in conflict as to whether a petition states a cause of action which merely alleges that a civil action, brought and prosecuted maliciously and without probable cause, has been terminated in favor of the defendant; many of the authorities maintaining that no cause of action exists unless such civil process be accompanied by arrest of the person or seizure of the property, and that the plaintiff in such original action, in contemplation of law, is sufficiently punished by the payment of costs. This view has received the sanction of Judge Cooley. (Torts, 2d Ed., 217 et. seq., and cases cited.) But there are numerous and able decisions in opposition to this view, and it is difficult to combat the force of the reasoning they employ. It is difficult to see why the right of a plaintiff, who, as defendant, has been sued in a civil action maliciously and without probable cause, and who has been put to great expense in consequence thereof, should be altered or at all affected merely by the incident of his property having been attached or his person seized; for, in either case, the damage, the expense, and costs of defending a suit, whether instituted by ca. sa. or attachment, or by civil summons, would be the same, and it is clear that the recovery of costs would not, under our practice, reimburse him for his attorney's fees, something which and other incidental expenses he does recover under the English practice. The cases on both sides of this subject have been extensively collated and exhaustively reviewed by John D. Lawson, in 21 Amer. Law Reg. (N. S.) 281, 353, and the conclusion reached that the better doctrine is that which allows an action to be maintained as well where property etc., has not been seized as where it has. The authorities also are well reviewed in 14 Amer. & Eng. Enc. Law, tit. "Malicious Prosecutions," p. 32 et seq., and notes. Besides, this court in Brady v. Erwin, 48 Mo. 533, adopted the view that an action for malicious prosecution may be maintained where the original action was begun by civil summons alone.

2. Of its own motion the court gave instruction No. 1: "The court, on plaintiff's behalf, of its own motion, instructs the jury that if they find from the evidence that, in the defendant's suit against the plaintiff this defendant's charge of slander was false, and that said suit was instituted with malice, and that said suit was also instituted without probable cause, and that this plaintiff was damaged thereby, the jury will find for the plaintiff in an amount not exceeding the amount claimed in this plaintiff's petition. If the jury find that this defendant's charge of slander was false, then the proof of want of probable cause, being the proof of a negative, may be made out by slight evidence, but malice is not to be necessarily inferred from the want of probable cause. Malice is the intentional doing of a wrongful act without just cause or excuse, [and the jury are instructed that, under the pleadings in this case, it is admitted that defendant, Burrus, voluntarily instituted and voluntarily dismissed said slander suit of Burrus v. Smith, and the court further instructs the jury that such voluntary dismissal of said slander suit is in this cause prima facie evidence of malice on the part of defendant, Burrus.]" Attention will now be directed to that portion of that instruction which is inclosed in brackets. Instruction No. 1, asked by the plaintiff, but refused him, is to the same effect, and as to that portion of the instruction, of course, the plaintiff would have no right to complain. We do not regard either instruction as asserting the law on this point. In the Law of Torts, (2d Ed., pp. 214, 215,) it is said by Judge Cooley: "The burden of proving that the prosecution was malicious is also upon the plaintiff. If a want of probable cause is shown, malice may be inferred; but the deduction is not a necessary one, and the mere discontinuance of a criminal prosecution, or the acquittal of the accused, will establish for the purposes of this suit neither malice nor want of probable cause. But, if an arrest is made in a civil suit which is afterwards voluntarily discontinued, the discontinuance has been held to furnish prima facie evidence of a want of probable cause." If the discontinuance of a criminal prosecution, instituted by the defendant, and discontinued at his instance, be evidence which establishes neither malice nor want of probable cause, it is difficult to see how the voluntary discontinuance of a civil action instituted by the defendant can cut a wider swath. "Prima facie evidence of a fact, says Mr. Justice STORY, is such evidence as, in judgment of law, is sufficient to establish the fact, and, if not rebutted, remains sufficient for the purpose." Lilienthal's...