DeWitt v. Syfon

• Decision Date: 09 May 1919
• Citation: 211 S.W. 716,202 Mo.App. 469
• Parties: W. G. DeWITT, Respondent, v. JOHN H. SYFON, Appellant
• Court: Missouri Court of Appeals

211 S.W. 716

202 Mo.App. 469

W. G. DeWITT, Respondent, v. JOHN H. SYFON, Appellant

Court of Appeals of Missouri, Springfield

May 9, 1919

Appeal from Greene County Circuit Court.--Hon. Arch A. Johnson Judge.

Judgment reversed and cause remanded.

Watson & Page for appellant.

Hamlin & Hamlin and Collins, Stough & Holladay for respondent.

STURGIS P. J. Bradley and Farrington, JJ., concur.

OPINION

STURGIS, P. J.

In this suit for malicious prosecution the plaintiff prevailed in the trial court both as to actual and punitive damages. Hence this appeal.

The prosecution of plaintiff which is alleged to have been malicious and without probable cause was brought under section 4570, Revised Statutes 1909, making it a criminal offense for a mortgagor to sell or dispose of mortgaged property without the written consent of the mortgagee and without informing the purchaser of the fact of the mortgage for the purpose of defrauding such mortgagee. The plaintiff in this case executed a chattel mortgage to defendant on a certain jack and a horse owned by him to secure plaintiff's note payable to defendant. Thereafter and without paying the note and without the written consent of the mortgagee the plaintiff disposed of the jack in a trade for an incumbered and not very valuable forty acres of land in Christian County, Missouri. Both plaintiff and defendant lived in Greene County where the mortgaged chattels were also located and where the mortgage was duly recorded. The defendant on learning of plaintiff having disposed of the jack in this manner consulted with his own and the prosecuting attorney of Greene County resulting is defendant making an affidavit charging the plaintiff with the offense of unlawfully disposing of mortgaged chattels. The alleged value of such property being such as to make the offense a felony, the plaintiff was arrested and held for a preliminary examination before a Justice of the Peace, resulting in his being discharged. The docket of the Justice of Peace shows that on hearing the evidence such Justice found that "there is no probable cause to hold this defendant." The attorney who defended plaintiff on the criminal charge says that the defense he made was that the jack was of no value. There is other evidence that such was the real ground of plaintiff being discharged, since if the value of the jack was less than fifty dollars the offense was only a misdemeanor and would release plaintiff from a charge of felony. The plaintiff, however, claimed then as he does now that this defendant gave him verbal permission to sell or dispose of this mortgaged jack.

On a trial of the present case the plaintiff proved the fact of his arrest and preliminary trial on the charge mentioned and that same resulted in his being discharged. The defendant undertook to show that his action in having plaintiff arrested and tried on this charge was without malice, was in good faith and on probable cause. Much of the evidence was directed to the question of defendant's having given verbal permission to plaintiff to sell or dispose of this property. On this point the evidence of plaintiff and defendant is in direct conflict.

The errors assigned here relate to the giving and refusing instructions. The first instruction given for plaintiff required the jury, in order to give plaintiff a verdict, to find that the criminal prosecution was with malice and without probable cause. This is correct since both malice and want of probable cause are essential to sustain plaintiff's cause of action. [Stubbs v. Mulholland, 168 Mo. 47, 74, 67 S.W. 650; Harris v. Railroad, 172 Mo.App. 261, 268, 157 S.W. 893; Pinson v. Campbell, 124 Mo.App. 260, 268, 101 S.W. 621.]

The second instruction given for plaintiff gives a definition of the two kinds of malice, malice in law and malice in fact, and ends with this clause: "If, therefore, the jury believe from the evidence that the defendant, John H. Syfon, was moved by spite, hatred or ill-will against the plaintiff, or that the arrest and prosecution of plaintiff was wrongfully and intentionally caused by defendant, then the prosecution was malicious and your verdict should be for the plaintiff."

This instruction is said to be error because it authorizes a verdict for plaintiff on a finding of malice alone and ignores the essential element of want of probable cause. That the instruction is erroneous in this respect is obvious since it does authorize a verdict for plaintiff without requiring a finding of want of probable cause. [State ex rel. Long v. Ellison, 272 Mo. 571, 583, 199 S.W. 194; Wojtylak v. Coal Co., 188 Mo. 260, 282, 87 S.W. 506.] So this court has held in Foster v. Blanchard, 204 S.W. 829.

This case does not, as suggested by plaintiff, fall within the class of cases holding that an instruction covering plaintiff's case need not exclude an affirmative defense raised by defendant but may properly leave such defense to be covered by defendant's instructions. Ellingson v. Railroad, 60 Mo.App. 679, 689 and Kingman v. Shawley, 61 Mo.App. 54 will serve as examples. Want of probable cause is not an affirmative defense to a suit for malicious prosecution, but is a necessary ingredient of plaintiff's case and as to which the burden of proof is on plaintiff.

Plaintiff claims, however, that this error is cured by the other instructions which require a finding of want of probable cause as an essential element of plaintiff's case. The rule is invoked that all the instructions must be read together and when so read if they fairly cover the entire case, there is no reversible error. In view of other points raised in the case this question need not be further discussed since it will suffice to brand this instruction as error and proceed to such other points.

Instruction four given for plaintiff tells the jury that malice may be inferred from the facts showing want of probable cause and:

"If you find from the evidence that the justice of peace before whom the affidavit for a warrant was sworn out, and before whom the charge against plaintiff was tried, discharged the plaintiff upon the trial of that cause, then the law presumes that there was no probable cause for defendant swearing out the warrant against plaintiff and having him arrested."

This instruction, we think, is clearly erroneous. It is true that the discharge of plaintiff by the justice of peace from the criminal charge makes a prima-facie case of want of probable cause and is generally sufficient evidence to carry that question to the jury. It shifts the burden of evidence on defendant to show the facts causing him to believe in the plaintiff's guilt. As said in Stubbs v. Mulholland, 168 Mo. 47, 77, 67 S.W. 650:

"That probable cause was wholly lacking in this case is shown prima-facie by the discharge of the accused. This alone, would call on defendants for their defense; and with nothing introduced by them in evidence would authorize the matter to be submitted to the jury, under appropriate instructions, to determine whether they would, from the facts showing a want of probable cause, draw an inference of malice, and thus furnish the other ingredient necessary to make up the component parts of an action for malicious prosecution."

In Nolen v. Kaufman, 70 Mo.App. 651, 656, the court held that although the discharge by the examining magistrate makes a prima-facie case in a suit for malicious prosecution, yet when the defendant goes forward and puts in the countervailing evidence tending to show probable cause then this presumption disappears and the evidence may so completely overcome the prima-facie case as to warrant a directed verdict for defendant. After the facts as to want of probable cause are in evidence and there is any conflict the jury should determine that question from the facts in evidence unhampered by any presumption. It...