Coleman v. Ziegler

Decision Date17 January 1950
Docket NumberNo. 27693,27693
Citation226 S.W.2d 388
CourtMissouri Court of Appeals

Charles H. Rehm, St. Genevieve, Raymond S. Roberts, Farmington, for appellant.

W. A. Brookshire, Columbia, for respondent.

McCULLEN, Judge.

This is a suit for damages for malicious prosecution. It was instituted by respondent as plaintiff against appellant as defendant in the Circuit Court of St. Genevieve County, Missouri, and later transferred to the Circuit Court of Jefferson County, where it was tried before the court and a jury, resulting in a verdict for $3,125 in favor of plaintiff and against defendant. Defendant appealed to this court.

Plaintiff's petition alleged that defendant maliciously and without probable cause made an affidavit and lodged a charge before Frank X. Siebert, Justice of the Peace of St. Genevieve County, Missouri, on February 1, 1943, charging that plaintiff did unlawfully and wilfully throw down and open a certain fence on the premises of Louis J. Ziegler and Harry J. Petrequin and leave said fence open and down, the fence being the property of the defendant; that defendant without good cause maliciously signed an affidavit; that the Justice issued a warrant on which plaintiff was arrested; that he was tried in February 1943 before the Justice of the Peace, and that defendant testified as a witness against plaintiff, but that plaintiff was acquitted by said Justice. Plaintiff prayed for $5,000 actual and $5,000 punitive damages.

The answer of defendant was a general denial coupled with allegations to the effect that defendant prior to the institution of said prosecution consulted a reputable attorney who advised defendant to lay all the facts before the Prosecuting Attorney; that defendant fully and fairly laid all the facts before the Prosecuting Attorney and at the request of the Prosecuting Attorney signed the affidavit and testified as to the facts; that defendant acted only on probable cause and in good faith and was not guilty of maliciously prosecuting plaintiff as alleged in plaintiff's petition.

It appears from the testimony that plaintiff and defendant entered into a contract whereby plaintiff agreed to remove timber from 263 acres of land belonging to defendant located in St. Genevieve County. Under the contract the timber was divided into six tracts. When plaintiff was almost finished with the work of removing the timber defendant had him arrested on a charge of cutting a wire fence and letting it down. The charge against plaintiff was tried before a Justice of the Peace who entered a finding and judgment of not guilty. The testimony shows that after plaintiff and defendant entered into the written contract mentioned, plaintiff started to cut the timber in accordance with the contract; that when plaintiff moved his mill onto tract No. 5, which abutted on a county highway, he entered through a gap in the barbed wire fence; that later plaintiff in hauling from his mill stopped using the gap and cut the wires of defendant's fence approximately 100 yards from the gap.

Plaintiff's testimony was to the effect that defendant authorized him to cut the fence and showed him where to cut it about ten days before plaintiff was arrested; that the cutting of the fence was necessary for a roadway to the tract of land where the timber was being cut; that there was a whole wire fence which surrounded the timber land and some cultivated land that defendant owned. The contract between the parties provided that all of the timber except 10,000 feet of lumber belonged to plaintiff for his work in cutting and removing the timber, the purpose being to make the land suitable for farming. Said 10,000 feet of lumber were to be turned over to defendant as the work progressed.

Plaintiff further testified that from the time he was arrested to the date of the trial of that case, approximately two weeks, most of his men quit working for him because they became frightened and did not return to work until plaintiff had been tried in the Justice Court and acquitted; that later the men reported back to work; that at the time of his arrest plaintiff had 1,500 logs cut which had a value of about $3,000; that in the meantime, after his arrest, the land got into such a condition because of a thaw that he could not remove the logs and that immediately thereafter a flood came and washed all of the logs away, resulting in loss to plaintiff; that before the arrest defendant Ziegler had told him that he, Ziegler, had been offered $2,000 for the timber.

Plaintiff further testified that he was greatly humiliated and was shunned by his neighbors after the arrest; that he was refused credit because of the arrest and the charges brought against him by defendant; that people to whom he had been selling the timber products refused to buy anything between the date of his arrest and the date of his trial in the Justice Court. Further testimony by plaintiff was to the effect that he lost three days time getting ready for trial of the criminal charge; that his time was worth $25 per day, and that he paid a lawyer $50 to defend him on the criminal charge.

The defendant Ziegler denied that he authorized or gave permission to plaintiff to cut the fence and testified that he told plaintiff a number of times to stay on the established roads or routes in and out, to and from the county road to the saw mill, and to stay out of the fields.

The Justice of the Peace testified as a witness in the instant case and stated that he did not recall any testimony before him that Ziegler gave permission to Coleman to cut the wire fence. The records of the trial before the Justice of the Peace were introduced in evidence.

The Prosecuting Attorney who represented the State in the prosecution of plaintiff on the charge of fence cutting testified in the instant case, stating that upon the facts given to him he had concluded there was probable cause for charging plaintiff with the offense of fence cutting. He also testified that he did not recall whether in the trial of the case before the Justice there was any testimony as to Ziegler giving permission to Coleman to cut the fence; that if Ziegler had told him that he had consented to the cutting of the fence he would not have filed the information and brought the prosecution; that he was of the opinion that there was probable cause to believe a crime had been committed and that after the case was tried in the Justice of the Peace Court he was still of the same opinion.

It also appears from the record in the instant case that the defendant Ziegler employed a special prosecutor, Judge Taylor Smith of Farmington, Missouri, to assist the Prosecuting Attorney in prosecuting Coleman on the fence cutting charge.

Defendant contends that the court erred in refusing to sustain his motion for a directed verdict at the close of plaintiff's evidence and at the close of the evidence in the whole case.

We are unable to agree with defendant in his contention that plaintiff failed to make a case for the jury. We have read the cases cited by defendant on this point and believe they would not justify us in holding that the court erred in refusing to direct a verdict for defendant. The law is well settled in this state to the effect that in a suit for damages for malicious prosecution the burden is on the plaintiff to prove that the prosecution against him was instituted without probable cause and with malice on the part of the person who instituted it. Our courts have uniformly held that probable cause which will relieve a prosecutor from liability 'is a belief by him of the guilt of the accused, based on circumstances sufficiently strong to induce such belief in the mind of a reasonable and cautious man.' Butcher v. Hoffman, 99 Mo.App. 239, 250, 73 S.W. 266, 269. See also Vansickle v. Brown, 68 Mo. 627; Stubbs v. Mulholland, 168 Mo. 47, 67 S.W. 650; Christian v. Hanna, 58 Mo.App. 37.

In Higgins v. Knickmeyer-Fleer Realty & Investment Co., 335 Mo. 1010, 1025, 74 S.W.2d 805, 812, the necessary elements for plaintiff to show in a suit for damages for malicious prosecution were stated to be: '(1) The commencement or prosecution of the proceeding against him or her; (2) its legal causation by the present ...

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6 cases
  • Taylor v. Kansas City Southern Ry. Co., 44778
    • United States
    • Missouri Supreme Court
    • October 8, 1956
    ...1082; Mahanay v. Kansas City Rys. Co., 286 Mo. 601, 228 S.W. 821, 827; Olian v. Olian, 332 Mo. 689, 59 S.W.2d 673, 678; Coleman v. Ziegler, Mo.App., 226 S.W.2d 388, 393; and see Kourik v. English, 340 Mo. 367, 100 S.W.2d 901, 906. We cannot say, as plaintiff argues, that the testimony was n......
  • Hoene v. Associated Dry Goods Corp.
    • United States
    • Missouri Supreme Court
    • November 13, 1972
    ...since plaintiff had a verdict, the appellate court considers the evidence from the viewpoint most favorable to plaintiff. Coleman v. Ziegler, Mo.App., 226 S.W.2d 388. If the testimony on any material part of the evidence showing the existence or want of probable cause is in conflict, that b......
  • Coleman v. Ziegler
    • United States
    • Missouri Supreme Court
    • April 14, 1952
    ...judgment and remanded the cause on account of error in the admission of evidence of alleged 'special damages' not pleaded. Coleman v. Ziegler, Mo.App., 226 S.W.2d 388. On remand, plaintiff filed an amended petition wherein he alleged 'that on or about the first day of February, 1943, the de......
  • Murphy v. Graves
    • United States
    • Missouri Supreme Court
    • September 10, 1956
    ...& E. Bridge Co., 333 Mo. 721, 62 S.W.2d 1079, 1082; Mahany v. Kansas City R. Co., 286 Mo. 601, 228 S.W. 821, 827; Coleman v. Ziegler, Mo.App., 226 S.W.2d 388, 393. It is not necessary to rule other assignments. The situation may be different upon a new The judgment is reversed and the cause......
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