Callahan v. Kelso

• Decision Date: 05 May 1913
• Parties: CALLAHAN v. KELSO.
• Court: Missouri Court of Appeals

156 S.W. 716

170 Mo. App. 338

CALLAHAN v. KELSO.

Kansas City Court of Appeals. Missouri.

May 5, 1913.

1. MALICIOUS PROSECUTION (§ 56) — GROUNDS — PROOF.

Plaintiff, suing for malicious prosecution, in order to recover must show affirmatively that the prosecution not only terminated in his favor, but also that it was instituted by defendant maliciously and without probable cause.

2. MALICIOUS PROSECUTION (§ 27) — MALICE.

A criminal prosecution is malicious when actuated by hostile, angry, or vindictive motives, or when intentionally instituted and carried on with knowledge that it is without legal justification, and the existence of malice may be inferred from proof of want of probable cause.

3. MALICIOUS PROSECUTION (§§ 20, 23) — "PROBABLE CAUSE" — EVIDENCE.

A probable cause which will relieve a prosecutor from liability for instituting a criminal prosecution is a belief in the guilt of accused, based on circumstances sufficiently strong to induce such a belief in the mind of a reasonable and cautious man, and want of probable cause may not be inferred from proof of malice.

4. MALICIOUS PROSECUTION (§ 64) — MALICE — PROBABLE CAUSE.

In an action for malicious prosecution, evidence held to support a finding that defendant

instituted the criminal prosecution maliciously and without probable cause.

5. LARCENY (§ 3) — ELEMENTS — TAKING PROPERTY OF ANOTHER.

One who, in good faith, under color of rightful claim, takes the property of another and converts it to his own use is not guilty of larceny but is subject to civil liability only, though a bare assertion of a claim to stolen goods does not prevent a conviction for larceny.

6. MALICIOUS PROSECUTION (§ 69) — DAMAGES — EXCESSIVE DAMAGES.

A verdict for $400 actual damages for the malicious prosecution of plaintiff for petit larceny will not be disturbed as excessive where he incurred expense and loss of time in the sum of $50, since the mental anguish and humiliation which he suffered from the prosecution were proper elements in ascertaining the damages.

Appeal from Circuit Court, Chariton County; Fred Lamb, Judge.

Action by Willis Callahan against Sam S. Kelso. From a judgment for plaintiff, defendant appeals. Affirmed.

J. A. Collet, of Mendon, for appellant. F. C. Sasse, of Brunswick, and Roy McKittrick, of Salisbury, for respondent.

JOHNSON, J.

This is an action for malicious prosecution, the trial of which in the circuit court resulted in a verdict and judgment for plaintiff in the sum of $400 actual and $600 punitive damages. Defendant appealed and argues: First, that plaintiff failed completely to sustain his burden of proof relating to the issues of probable cause and malice; and, second, that the assessment of actual damages in the verdict was so excessive as to indicate that the jury were swayed by passion and prejudice.

The parties lived on adjoining farms in Chariton county for many years and had been intimate friends. They had owned agricultural tools and implements in partnership and had other neighborly dealings. Shortly before the events that gave rise to this controversy they had a settlement which defendant admits had ended in an unreconciled difference of opinion over a claim made by plaintiff for the services of a boar. This misunderstanding did not cause an open breach, but thereafter, to borrow defendant's description of their relationship, the parties were not on friendly "but just on neighborly terms." It appears that the various flocks of turkeys raised in the neighborhood in the year 1910 had exhibited a pronounced gregarious disposition and had selected defendant's orchard as their favorite haunt and roosting place. Defendant had six and plaintiff eight turkeys, and these, with perhaps four score more, had amalgamated into one grand flock. The wife of plaintiff, who had taken the pains to mark their turkeys by putting "a ring in the neck" of the parent birds and by cutting off the little toes of the young ones, had made many visits to defendant's farm to reclaim her own and invariably had brought them off without let or hindrance. On the last of these occasions, which was early in December, she went to defendant's farm accompanied by a boy, found and drove home her turkeys and put them in a pen with the exception of one that escaped. She did not meet defendant or any of his family but was in plain view of the house while driving the turkeys. About a week later plaintiff sold the turkeys to a huckster. The evidence of plaintiff tends to show that the turkeys were his property, and there is no evidence in the record that he or his wife acted surreptitiously or in any manner inconsistent with an honest belief that they were dealing with their own property. Defendant's turkeys disappeared and in his search for them he was informed of facts that led him to believe they had been taken by plaintiff. Instead of going direct to plaintiff he did a lot of detective work in the neighborhood, in the course of which he gave currency to the report that plaintiff had stolen his turkeys. After the lapse of a month or more he saw plaintiff and spoke to him about the turkeys. Plaintiff replied with a positive claim of ownership and asserted that he could produce the testimony of one of their closest neighbors in support of his claim. After this defendant procured the arrest and prosecution of plaintiff on a charge of petit larceny....