Boogher v. Bryant

• Decision Date: 30 April 1885
• Citation: 86 Mo. 42
• Parties: BOOGHER, Appellant, v. BRYANT et al.
• Court: Missouri Supreme Court

86 Mo. 42

BOOGHER, Appellant,

v.BRYANT et al.

Supreme Court of Missouri.

April Term, 1885.

Appeal from St. Louis Court of Appeals.

REVERSED.

W. C. Marshall for appellant.

(1) This action, based on the second and fourth counts of the information, is maintainable, notwithstanding the conviction and subsequent acquittal on the first, third and fifth counts. 2 Greenl. Ev., sec. 449; Reed v. Taylor, 4 Taunt. 616; Ellis v. Abrahams, 10 Jurist, 593; Sharpe v. Johnston, 76 Mo. 660. (2) The plaintiff's legal right of recovery being established, it was not necessary for him to prove special damages; the whole recovery might be exemplary damages. Callahan v. Caffarata, 39 Mo. 136; Buckley v. Knapp, 48 Mo. 152; Hill v. Palm, 38 Mo. 13; Sharpe v. Johnston, 59 Mo. 571; Price v. Whiteley, 50 Mo. 438; Curry v. Collins, 37 Mo. 326; Nelson v. Musgrove, 10 Mo. 648; Sharpe v. Johnston, 70 Mo. 660; Boogher v. Knapp, 76 Mo. 457; 2 Greenleaf on Ev., sec. 456. (3) This being the second verdict for the plaintiff, the question of excessive damages cannot be raised. R. S., p. 631, sec. 3705; State ex rel. Wright v. Adams, 76 Mo. 605; Boycev. Smith, 16 Mo. 317. And in such case, if the triers of the facts did not err in a matter of law, “it is useless to examine the instructions.” Pratt v. Cabanne, 12 Mo. 194; State ex rel. Wright v. Adams, 76 Mo. 605.

E. T. Farish for respondent.

(1) The instruction, given at the instance of the plaintiff, as to the damages he was entitled to recover, was erroneous. By it the jury are left without guidance as to what circumstances would entitle plaintiff to exemplary damages. (2) Under no aspect of the case, under the testimony, could a verdict for more than nominal damages have been properly rendered, as it was not shown what proportion, if any, of any loss of money, expense, loss of business, or mental or bodily suffering, if any, were produced by the prosecution, under the two counts in the petition. The value of counsel fees for the defence of the whole prosecution, and, also, for defence of a case for criminal conspiracy, was proved to be eight hundred dollars; but who can say, or what means had the jury of determining, how much of that sum was properly apportionable to the defence on the two counts withdrawn? In the nature of things, the plaintiff's damages, if he sustained any, were unsusceptible of computation. (3) The damages found by the jury were excessive. Lowenthal v. Strong, 90 Ill. 74; Walker v. Martin, 25 Ill. 347; Sears v. Hathaway, 12 Cal. 278; Patton v. Searl, 8 Cal. 217.

RAY, J.

This is an action for malicious prosecution, based upon two counts in an information for criminal libel, upon which the present plaintiff was prosecuted in the St. Louis court of criminal correction. There were five counts in the information, each charging a distinct libel published at different times, as to three of which the plaintiff herein was, upon the first trial, convicted, though, upon a reversal of the judgment, and a new trial, the plaintiff herein was finally acquitted. As to the other two counts, being the second and fourth in the information, and those on which the present suit is based, those were, on the first trial in the court of criminal correction, withdrawn by the prosecutor after the evidence for the state had been put in.

The petition in this case contains two counts, the first based on the prosecution under the second count of said information, and the second based on the fourth count of said information. It is further alleged in the petition that, in pursuance of the information, of which said second and fourth counts formed a part, the plaintiff was arrested and prosecuted in the court of criminal correction, and that said court, after hearing all the defendants could say, adjudged the plaintiff not guilty; that said prosecution was without probable cause and was malicious, and that the same was at an end.

The answer denies these allegations and justifies the prosecution on the ground that defendants were directors of the Life Association of America, of which said publications were made. After pleading advice of counsel, the answer sets up that the defendants caused the said information to be lodged in said court; that the same contained the said charges, and other charges; that upon a trial thereof, about March 13, 1876, the plaintiff herein was found guilty of the other charges, which established the truth of some of the charges contained in said information, and afforded probable cause for the course pursued by defendants in causing all of said charges to be lodged against plaintiff. The defendants further pleaded the statute of limitations of two years. The reply is a general denial.

Upon these issues there were two jury trials in the circuit court, at the first of which the plaintiff had a verdict and judgment for $15,000, which, on motion of defendants, was set aside and a new trial granted, at which the plaintiff again had a verdict and judgment, this time for $2,500, on each count of the petition, from which the defendants appealed to the St. Louis court of appeals, where the judgment of the circuit court was reversed, and the cause remanded, from which latter judgment the plaintiff appealed to this court. At the last trial the evidence, as shown by the record, is quite voluminous, and, for the present, we omit any statement of it, as the same, so far as material to the question now before us, will hereinafter otherwise appear in the progress of this opinion. From the view taken of the case by the court of appeals, the instructions given and refused need not be set out, except as hereafter noticed.

A synopsis of the opinion of the court of appeals, is reported in 9 Mo. App. Reports, 592, and is as follows:

“1. An action for malicious prosecution, based on one or more counts in an information for criminal libel, may be maintained where the information was without probable cause, as to those counts, though the plaintiff was convicted under other counts in the petition. (2) In such case, the plaintiff can recover only for damages arising from the prosecution on the counts as to which there was no probable cause. (3) Unless it be shown distinctly what damages arose from the prosecution under these counts, the damages will be nominal.” The opinion at length is found in the record, from which we quote such portions thereof as indicate more fully the grounds on which its judgment of reversal is based, to-wit:

“The damages with which we are here concerned are such as arise from the presentation or prosecution of the two counts, as distinguished from those upon which the conviction was had. If damage arose from other sources than the prosecution as charged and relied on in the petition, if it arose from the three counts on which the conviction was had and their prosecution, the plaintiff ought not to recover the full amount of damages in the present suit. If the plaintiff merely testifies to the effect that in consequence of the filing of the information he was arrested, and that in his defence generally he paid certain sums--which is the state of the case shown by the record--no basis is afforded by which the damages can be adjusted to the injury for which the plaintiff here seeks recovery. It is true that the defendants had no right to present this information, that is, with the second and fourth counts in it; but the question which the plaintiff has raised, both by the petition and upon the issues presented to the jury by instructions, is, what injury arose from such presentation, and from the prosecution of the second and fourth counts, so far as they were prosecuted. As the trial was had below, the verdict should represent this injury and none other.

* * * *

Thus the case in the instructions, as well as in the petition, was put on the ground of the prosecution of the second and fourth counts, and it cannot be assumed that the finding of the jury is on the basis of anything else than the presentation of those counts, and the prosecution, so far as it proceeded, which took place under them. But the conviction upon the first, third and fifth counts is a justification, and as the case was tried and the issues to the jury framed, no legal injury arose from their prosecution. If distinct injury arose from the presentation or prosecution of the other counts, or damage which is fairly attributable to those counts, the burden is on the plaintiff to show this. So far as appears the same consequences would have resulted if the second and fourth counts had been omitted, so far as any damage to the plaintiff is concerned. Yet the jury have assessed $2,500 damages on each count of the petition. Thus, in theory, they have not only distinguished between the damages that have arisen from the prosecutions of the ...