Boogher v. Hough

• Decision Date: 02 December 1889
• Citation: 99 Mo. 183,12 S.W. 524
• Parties: BOOGHER v. HOUGH et al.
• Court: Missouri Supreme Court

12 S.W. 524

99 Mo. 183

BOOGHER v. HOUGH et al.

Supreme Court of Missouri.

December 2, 1889.

MALICIOUS PROSECUTION — PROBABLE CAUSE.

1. The presumption of probable cause, which ordinarily prevails when it appears on the face of a petition for malicious prosecution that plaintiff was convicted in the trial court, but judgment reversed on appeal, is rebutted by further allegations that the conviction was procured by fraud in depriving plaintiff of the testimony of his principal witness by joining him as co-indictee.

2. In view of the allegation that plaintiff was deprived of the testimony of his principal witness by defendants' acts, it is unnecessary to allege that he was thereby prevented from making a defense.

3. Where the evidence shows that there was frequent opportunity to serve the writ for the arrest of plaintiff's co-indictee, and that the officer once informed him that he had the same, and the officer's testimony, that he was informed by defendants' attorney that they did not care about the co-indictee, but were after plaintiff, is not directly contradicted, and the co-indictee testifies that he executed the libelous instrument for which they were prosecuted for other persons than plaintiff, the question of probable cause is for the jury.

Appeal from St. Louis circuit court; AMOS M. THAYER, Judge.

W. C. Marshall, for appellant.

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

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. Griffis v. Sellars, 2 Dev. & B. 492, (1837;) Whitney v. Peckham, 15 Mass. 243, (1818;) Bacon v. Towne, 4 Cush. 236, (1849;) Cloon v. Gerry, 13 Gray, 201, (1859;) Dennehey v. Woodsum, 100 Mass. 195, (1868;) Kaye v. Kean, 18 B. Mon. 839, (1867;) 2 Greenl. Ev. § 457, and note; Kirkpatrick v. Kirkpatrick, 39 Pa. St. 288, (1861;) citing 1 Hil. Torts, 494; Whitney v. Peckham, 15 Mass. 243; Griffis v. Sellars, 2 Dev. & B. 492; 2 Greenl. Ev. §§ 452, 457; Herman v. Brookerhoff, 8 Watts, 240. 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, 36, (1855;) Parker v. Farley, 10 Cush. 279, (1852.) 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 the 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. Pr. 1, (1855;) Burt v. Place, 4 Wend. 591, (1829;) cited by appellant. 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. Gowen, 14 Me. 362; Payson v. Caswell, 22 Me. 212, (1842;) Ulmer v. Leland, 1 Greenl. 135, (1820;) Reynolds v. Kennedy, 1 Wils. 232; Goodrich v. Warner, 21 Conn. 432; Palmer v. Avery, 41 Barb. 290, (1864.)

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 nonsuiting 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 libelous 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...