Duerr v. Ky. & Ind. Bridge & R. R. Co.
| Citation | 132 Ky. 228 |
| Parties | Duerr v. Ky. & Ind. Bridge & R. R. Co. |
| Decision Date | 26 February 1909 |
| Court | Court of Appeals of Kentucky |
Appeal from Jefferson Circuit Court; Chancery Branch (Second Division).
THOS. R. GORDON, Judge.
From a judgment sustaining a demurrer to the petition plaintiff appeals — Affirmed.
POPHAM & WEBSTER, for appellant.
HUMPHREY, DAVIS & HUMPHREY AND EDWARD P. HUMPHREY for appellee.
The appellant, Duerr, as plaintiff below, filed his petition against the appellee company, defendant, in which he averred, in substance: That on or about June 20, 1907, one Frank Stigers, then in the employment of the defendant, and acting within the scope of his employment and in its interest, in attempting to defeat damage claims against it, maliciously and feloniously entered into a conspiracy with Len Fenster, Jr., an employe of defendant, and with other agents and officers of defendant, to bribe and suborn George Giocometti and others to give false and perjured testimony against plaintiff, tending to prove him guilty of feloniously burning a barn on the night of June 14, 1907, for the sole purpose thereby of manufacturing evidence that might tend to defeat numerous damage claims against defendant growing out of an explosion of gasoline and gas. That in execution of said conspiracy Stigers, acting in the scope of his employment and in the interest of defendant, procured the arrest of plaintiff without a warrant and without probable cause upon the charge of burning the barn, knowing said accusation to be untrue and to be supported only by the false testimony of Giocometti and others manufactured by himself and his fellow conspirators by bribery and corruption. That in execution of said conspiracy, Stigers, acting for the defendant, had plaintiff prosecuted on said charge in the police court, held over to the grand jury, and indicted by the grand jury of the Jefferson criminal court; said action of the police court, the grand jury, and the Commonwealth's attorney being based solely on the false and perjured testimony of Giocometti and others. That shortly before the day set for trial of the criminal case in the circuit court, the plaintiff counseled with the attorney employed to defend him, and said attorney advised him that he was being persecuted, and that there was a conspiracy to accuse, indict, and convict him falsely; and further advised him that a conviction would be procured by the false and manufactured evidence which would be presented against him, and that the only way in which he could avoid being convicted on the charge of felony was to enter a plea of guilty to a lesser offense and take a fine. That, although he was innocent, he was forced by the duress, intimidation, and constraint caused, by said advice and the false testimony which had already been presented against him, to allow his attorney to agree with the Commonwealth's attorney to reduce the felony charge to the misdemeanor charge of maliciously destroying private property, and to let a plea of guilty be entered and a fine assessed against him. He averred that as a result of said conspiracy, false arrest, and malicious prosecution, he had been deprived of his liberty for a period of several months, subjected to indignity, humiliation, and disgrace, to his damage in the sum of $100,000. To this petition a general demurrer was sustained, and, declining to plead further, the petition was dismissed, and this appeal prosecuted.
The general rule, and the one prevailing in this State, is that, in an action for false arrest or malicious prosecution, the plaintiff must both allege and prove malice as well as want of probable cause on the part of the prosecutor....
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