Callahan v. Caffarata

• Decision Date: 31 October 1866
• Citation: 39 Mo. 136
• Parties: JOSEPH CALLAHAN, BY HIS NEXT FRIEND WILLIAM CALLAHAN, Respondent, v. LOUIS CAFFARATA, Appellant.
• Court: Missouri Supreme Court

39 Mo. 136

JOSEPH CALLAHAN, BY HIS NEXT FRIEND WILLIAM CALLAHAN, Respondent,

v.LOUIS CAFFARATA, Appellant.

Supreme Court of Missouri.

October Term, 1866.

Appeal from St. Louis Court of Common Pleas.

The facts are sufficiently stated in the opinion.

At the instance of plaintiff the court gave the following instructions, to which defendant duly excepted:

1. The jury are instructed that if they believe from the evidence that the arrest and imprisonment of plaintiff was without probable cause, then the jury are at liberty to infer that it was malicious.

2. The jury are instructed that there are two kinds of malice--malice in fact, and malice in law: the former, in common acceptation, means ill-will against a person; the latter is a wrong act against a person done intentionally. If, therefore, the jury believe from the evidence that defendant Caffarata was moved by ill-will against the plaintiff, or that the imprisonment of plaintiff was wrongfully and intentionally caused by him, they ought as against him to find that the imprisonment was malicious.

3. The jury are instructed that unless they believe from the evidence, that, at the time of the arrest and imprisonment of plaintiff upon the offence charged, there was a reasonable ground of suspicion of his guilt and supported by circumstances sufficiently strong in themselves to warrant a prudent man in the belief that plaintiff was guilty of the crime for which he was imprisoned, then there existed no probable cause for his arrest, and the jury will find accordingly.

4. If the jury find for the plaintiff, he will be entitled to recover such damages as the jury shall believe from the evidence that he suffered from his arrest and imprisonment; and the jury may add such further sum, by way of smart money, as in their opinion will sufficiently punish the defendant Caffarata for the wrong and injury done to plaintiff.

To the giving of these instructions appellant at the time duly objected and excepted.

The only instructions given on the part of appellant by the court were these:

1. If the jury find from the evidence that after the defendant Caffarata made the communication to the police officers, spoken of by the witness, concerning the loss of his jewelry, and after he had offered a reward for the recovery of his property, as stated by the witnesses, the police officers or one of them, ordered or made the arrest of the plaintiff, and imprisoned him, without any request or direction of the defendant Caffarata so to do, then he is not liable in this action and the jury should find for him.

2. If the jury find from the evidence that Joseph Callahan was arrested and confined in the calaboose by the directions of the chief of police, or by the direction of one or more of the police officers, and that the said arrest and confinement of Callahan was not caused or procured by the defendant Caffarata, then the jury should find for Caffarata.

The following were the instructions asked by the appellant, which the court refused, and to which refusal the appellant at the time duly excepted:

1. The court instructs the jury that they should find for the defendant Caffarata, unless the jury find from the evidence that he and William Lee falsely and maliciously conspired together to have Joseph Callahan arrested, and that they did arrest, or cause him to be arrested, or imprisoned, on a charge of larceny.

2. The burden of proving the complaint against Caffarata stated in the petition rests on the plaintiff.

3. If the jury find from the evidence that the defendant Caffarata, in good faith and without malice or ill-will to wards Joseph Callahan, made the communications and statements to the police officer spoken of by the witnesses; and if the jury also find from the evidence that no complaint was made by Caffarata to obtain a writ of process for the arrest of Callahan; and if the jury further find from the evidence that officer Lee arrested Callahan without the authority of any judicial writ or process issued at the instance or by the procuration of Caffarata,--then the plaintiff cannot recover in this suit, and the jury should find for the defendant.

4. If the jury should find from the evidence that the defendant Caffarata in good faith made the communications and statements to the police officers, spoken of by witnesses, in respect to the loss or theft of his jewelry; or if the jury also find from the evidence that Caffarata, in all that he said to the police officers in answer to the inquiries or otherwise in respect to Joseph Callahan, acted from honest motives and without malice or ill-will to ward him, then the jury should find for the defendant.

5. The jury are instructed that there was no legal obligation or duty resting on the police officers, or either of them, to arrest or imprison Joseph Callahan upon the communications and statements made to them by Caffarata in respect to the loss or theft of his jewelry. It was entirely optional with the police whether to make the arrest or not.

6. Although the jury may find from the evidence that the defendant Caffarata made the communieations and statements to the police officers in respect to the theft or loss of his diamonds, and that he requested that Joseph Callahan should be arrested; yet if the jury find from the evidence that in making said communications and statements Caffarata acted in good faith and without malice or ill-will towards Joseph Callahan, the jury should find for the defendant Caffarata.

All these instructions were refused, and appellant duly excepted.

The jury returned a verdict against Caffarata for $1,000 (the suit having been dismissed by plaintiff as to defendant Lee).

Krum & Decker, for appellant.

I. There was a fatal variance between the proof and the allegation of the petition.

The defendant was sued for conspiring with defendant Lee to arrest and imprison the plaintiff; this is the allegation of the petition. This was denied; the proof failed to show such conspiracy.

By the first instruction tendered by appellant, he asks that unless this issue was proven the jury must find for defendant. The plaintiff canot state one cause of action and then recover on another; this rule has een constantly enforced by this court.--Dieckman v. McCormick, 24 Mo. 596; Link v. Vaughn, 17 Mo. 585; Beck v. Ferara, 19 Mo. 30; Dunan v. Fisher, 18 Mo. 403; Gregg v. Robbins, 28 Mo. 347; Harris v. Hann. & St. Jo., R. R. Co., 37 Mo. 308.

The injustice of allowing such a course of practice is very apparent; it takes a party by surprise. He is charged with one thing, and, being ready o disprove, plaintiff recovers on another. The party must be held to prove his cause of action as he alleges it, or else all written pleadings hould be abolished.

II. Malice as well as want of probable cause is necessary to sustain the action.

Malice is a question of fact to be found by the jury. It may be inferred from a want of probable cause, but the jury must find there was malice in fact. The doctrine of “malice in law,” given by the court to the jury, has no application to this case, because there was no prosecution immediately instituted by defendant. In an action where the prosecution is not instituted immediately, defendant must prove actual malice, and not merely the want of probable cause, to infer malice in law--Bulkly v. Smith, 2 Duer, 265; Mitchel v. Jenkins, 5 B. & A. 595; Miller v. Brown, 3 Mo. 127; Frissel v. Relfe, 9 Mo. 851; Riney v. Vallandingham, 9 Mo. 807; Brant v. Higgins, 10 Mo. 728.

Garesche & Mead, and R. S. McDonald, for respondent.

I. Malice is a question of fact to be left to the jury, and hence the court in its instructions for the plaintiff committed no error--Frissel v. Relfe, 9 Mo. 859.

II. That the arrest was without warrant, only made it more illegal; but it does not excuse defendant--Miller v. Brown, 3 Mo. 127.

III. The motion for a new trial was properly overruled; the “ground of surprise” was a futile reason.

Because it showed no dilligence--State to use, &c., v. Wightman et al., 27 Mo. 121; Peers v. Davis, 29 Mo. 184; O'Connor v. Duff, 30 Mo. 595; Barry v. Blumenthal, 32 Mo. 29; Richardson et al. v. Farmer, 36 Mo. 35; Howell's Ex'r v. Howell, 37 Mo. 124.

Because the testimony was not applicable to the issue, and could have been procured on a former trial with a reasonable diligence--Goff v. Mulholland, 33 Mo. 203.

Because immaterial, and would not have changed the result--State v. Locke, 26 Mo. 603.

IV. The petition is sufficient--R. C. 1855, p. 1229, 2d s. d. of § 3, Id p. 1239, § 51.

V. The motion in arrest was properly overruled--R. C. 1855, p. 1255 § 19, s. d. 5, 8 & 9; Frazer v. Roberts, 32 Mo. 475; Shaler v. Van Wor mer, 33 Mo. 386; R. C. 1855, p. 1300, § 34.

FAGG, Judge, delivered the opinion of the court.

The respondent instituted his suit in the St. Louis Court of Common Pleas against the appellant together with one William Lee, for damage for falsely and maliciously conspiring together to have the plaintiff Joseph Callahan arrested for larceny, and for arresting and imprisoning him upon said charge. There was an answer filed by the appellant Caffarata containing a specific denial of all the allegations in the petition and, the suit being dismissed as to Lee, the trial was had upo the issues thus presented, which resulted in a verdict for the plaintiff A motion for a new trial as well as in arrest of judgment being oven ruled, the case is brought here by appeal.

It is contended on behalf of the appellant; 1. That there was a var ance between the proof and the allegations of the petition which wa fatal to the plaintiff's right of recovery. We do not think so....