Boogher v. Life Ass'n of America

• Decision Date: 30 April 1882
• Parties: BOOGHER, Appellant, v. THE LIFE ASSOCIATION OF AMERICA.
• Court: Missouri Supreme Court

75 Mo. 319

BOOGHER, Appellant,

v.THE LIFE ASSOCIATION OF AMERICA.

Supreme Court of Missouri.

April Term, 1882.

Appeal from St. Louis Court of Appeals.

REVERSED.

Marshall & Barclay for appellant, cited, in addition to the cases referred to by the court in the opinion, Johnson v. Dispatch Co., 65 Mo. 539; Barrett v. R. R. Co., 3 Allen 101; R. R. Co. v. Broom, 6 Exch. 314; Maynard v. Ins. Co., 34 Cal. 48; Higgins v. Turnpike Co., 46 N. Y. 23; Moore v. Fitchburg, 4 Gray 465; Bank v. Rogers, 125 Mass. 339; R. R. Co. v. Trans. Co.,83 Pa. St. 160; State Board v. R. R. Co., 47 Ind. 407; Darst v. Gale, 83 Ill. 136; Cooley on Torts, p. 119; Whitney v. Wyman, 101 U. S. 392; Turner v. R. R. Co., 51 Mo. 501; Perkins v. R. R. Co., 55 Mo. 201; Thornton v. Bank, 71 Mo. 221.

Chas. A. Davis and A. R. Taylor for respondent.

NORTON, J.

This is an action for malicious prosecution, the petition alleging that “at all the times hereinafter mentioned the defendant was and now is a corporation, organized, existing, etc., by virtue of the laws of Missouri, * * and as such, at all times mentioned herein, had power * * to sue and be sued, complain and defend, * * prosecute and plead in any court of law or equity * * ; that said corporation * * maliciously * * on the 3rd day of July, 1875, * * caused to be made and filed by its president, acting therein in the line and scope of his duty and authority as such president, a certain affidavit or information * * wherein the said defendant * * falsely and maliciously and without probable cause whatsoever, charged and caused plaintiff to be charged with the crime of criminal libel upon said corporation; * * that defendant * * appeared before said court * * by agents, officers and attorneys, alleging and repeating the said false and malicious charges * * ; that said malicious * * prosecution of plaintiff was instituted by defendant acting by and through its board of directors in legitimate exercise of its statutory power as such board, to prosecute * * such action as it might deem advisable * * ; and that defendant employed at an enormous fee and charge three several attorneys * * to aid the regular attorneys of the corporation in the said prosecution of plaintiff, * * and certain detectives were * * paid by defendant to furnish * * evidence, etc., * * ; that afterward, defendant ratified, confirmed and made its own, the acts hereinbefore recited, by regularly allowing, auditing and paying, as such corporation, and in the legal and regular exercise of its corporate powers to transact such business, certain attorneys * * who had been specially hired to, and had prosecuted plaintiff, as hereinbefore set forth, divers large sums of money as fees for their professional services in said prosecution of plaintiff; * * and * * by retaining said informant as its president up to the present time,” etc. The usual allegations of malice, want of probable cause, arrest, discharge, final termination of proceedings in favor of the plaintiff, and of damage, general and special, appear. Defendant demurred to the petition, which being sustained, plaintiff appealed to the St. Louis court of appeals, where the judgment of the circuit court was affirmed, from which judgment of affirmance he appeals to this court.

The sole question presented on the record is, whether or not a suit for malicious prosecution can be maintained against a private corporation. The learned judge who delivered the opinion of the court of appeals affirmed the judgment on the authority of the case of Gillett v. Mo. Valley R. R. Co., 55 Mo. 315. That case unquestionably authorized the conclusion announced in the opinion of the court of appeals. It is, however, insisted by counsel for plaintiff that the principle of that case is not in harmony with the rule of corporate liability as laid down by the courts of this country and England, and that it should, therefore, be reconsidered and overruled. An examination of the authorities has satisfied us that the point made by counsel is well taken.

Before proceeding to review the authorities bearing upon the question, it may be well to observe that it will be seen from the petition that the alleged malicious prosecution was instituted by defendant through its president for libel on the company itself; that the complaint was made by the president in compliance with and in obedience to an order and resolution of the board of directors; that the expenses of the prosecution were paid by the company, and that it fully ratified all that was done in the premises.

That a person guilty of libeling a private corporation may be called upon to answer for the wrong civilly and criminally, is sustained not only by authority, but by reason. State v. Boogher, 3 Mo. App. 442; 2 Bish. Crim. Law, § 934; Whart. Crim. Law, § 2540; 23 N. J. L. 407; 9 Minn. 133. It would seem on principle that a corporation should have the same right to protect itself against such a wrong as an individual. It is within the range of probability that the business and interests of a corporation might be as effectually destroyed by a libel upon it as by the destruction of all its property by the torch of an incendiary. To restrict the right of a corporation to redress for such wrongs and to protection against their commission simply to a civil action against the wrongdoers would certainly afford them neither protection from nor redress for such wrongs in all that class of cases where the party sued is insolvent, and, therefore, unable to respond by the payment of damages which might be recovered, and would virtually put corporations completely in the power of the libeller and incendiary.

Where, however, the officers of the corporation, as in the case before us, acting by its authority, institute a criminal proceeding for a libel upon it, it is subject to the same liabilities and responsibilities, which would be incurred by an individual who might commence and carry on such a prosecution, and if instituted without probable cause and maliciously, it would subject itself to an action for malicious prosecution. This position is sustained by the following authorities: Mr. Cooley, in his work on Torts, pages 119 and 121, observes that “Corporations are responsible for the wrongs committed or authorized by them under substantially the same rules which govern the responsibility of natural persons. It was formerly supposed that those wrongs which involved the element of evil intent, such as batteries, libels and the like, could not be committed by corporations, inasmuch as the State in granting them rights for lawful purposes, had conferred no power to commit unlawful acts; and such torts committed by corporate agents, must consequently be ultra vires and the...