Eckerle v. Higgins
| Decision Date | 06 November 1911 |
| Citation | 140 S.W. 616,159 Mo.App. 177 |
| Parties | GEORGE ECKERLE, Respondent, v. ERNEST C. HIGGINS, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Phelps Circuit Court.--Hon. L. B. Woodside, Judge.
REVERSED.
Judgment reversed.
Lorts & Breuer and J. M. Stephens for appellant.
(1) To maintain an action for malicious prosecution the plaintiff must show among other things, the following: 1st, the institution of the proceedings; 2d, without probable cause and 3d, with malice. In this case the plaintiff failed to show the instituting of the criminal proceedings by defendant. The mere making of a complaint before the justice is not such an instituting of the proceedings as will support the act of malicious prosecution. 19 Am. and Eng. Ency. of Law (2 Ed.), 653; 1 Cooley (3 Ed.), 342; Cooper v Armour, 42 F. 215. (2) The evidence in this case does not show that the defendant instituted the criminal proceeding "without probable cause." Mere proof that defendant filed with the justice a complaint, and the judgment of dismissal or abandonment of the prosecution, is not sufficient proof to establish the "want of probable cause," and especially is this true where plaintiff's own evidence shows that the justice refused to act on the complaint, but referred the matter to the prosecuting attorney, who directed the justice to arrest the plaintiff, and filed his information against him under his oath of office, and upon his own information and belief. Williams v. Vanmeter, 8 Mo. 342; Boeger v Langenberg, 97 Mo. 390; Lancaster v. Langton, 36 S.W. 521; Christian v. Hanna, 58 Mo.App. 37. (3) There was no malice on the part of defendant shown in evidence, neither were any facts proven from which the jury could infer malice. The mere discontinuance of a criminal prosecution will establish, for the purpose of this suit, neither malice nor want of probable cause. Jordon v. Railroad, 105 Mo.App. 446; 1 Cooley (3 Ed.), 337. (5) The filing of an information by a prosecuting attorney on his own information and belief, and under his own oath of office, is prima facie evidence of probable cause on the part of defendant in making the affidavit complained of, and this established presumption was not overcome by any evidence introduced in this case. Pinson v. Campbell, 124 Mo.App. 269. (5) The evidence in this case shows that the appellant had probable cause for believing the truth of the complaint made by him against respondent, and the court should have so declared as a matter of law, and sustained appellant's demurrer to the evidence. Warren v. Flood, 72 Mo.App. 199; Nolen v. Kauffman, 70 Mo.App. 651; Christian v. Hanna, 58 Mo.App. 37. (6) Probable cause is a mixed question of law and fact. Where the facts are undisputed it is the duty of the court to declare their legal effect. Sharp v. Johnson, 59 Mo. 576; Thomas v. Smith, 51 Mo.App. 613; Carp v. Ins. Co., 203 Mo. 351; 1 Cooley on Torts (3 Ed.), 321. (7) The burden is on plaintiff to clearly show by a preponderance of the evidence that the prosecution was instituted without probable cause. It will not be inferred from the mere fact of prosecution. There was no such showing in this case, for which reason this cause should be reversed. Christian v. Hanna, 58 Mo.App. 37; Warren v. Flood, 72 Mo.App. 199; Nolen v. Kauffman, 70 Mo.App. 651; Sharp v. Johnson, 59 Mo. 557; 8 Ency. of Ev. 412.
Bland, Crites & Murphy for respondent.
(1) Appellant acted without probable cause in instituting this prosecution without learning all of the facts that he might have learned by the use of reasonable diligence. Stubbs v. Mulholland, 168 Mo. 76; Hill v. Palm, 38 Mo. 13; Finley v. Refrig. Co., 99 Mo. 560; Christian v. Hanna, 58 Mo.App. 46; Sharpe v. Johnson, 59 Mo. 577. (2) Appellant acted without probable cause when he failed to disclose to the prosecuting attorney all the facts known to him bearing on the question of the guilt or innocence of the respondent. Pinson v. Campbell, 124 Mo.App. 268; Pipkin v. Haucke, 15 Mo.App. 373; Hill v. Palm, 38 Mo. 13. (3) Where there is a sharp and well defined issue as to whether all of the facts have been communicated to the prosecuting attorney it is a question for the jury. Sparling v. Conway, 75 Mo. 510; Moodey v. Deutsch, 85 Mo. 237; Casperson v. Sproule, 39 Mo. 39. (4) Where the appellant acted without probable cause, malice may be inferred. It is not an inference of law, but an inference of fact. It is a circumstance reasonably deducible from want of probable cause. Hickman v. Griffin, 6 Mo. 37; Williams v. Vanmeter, 8 Mo. 339; Callahan v. Caffarata, 39 Mo. 136; Kennedy v. Holliday, 25 Mo.App. 512; Butcher v. Hoffman, 99 Mo.App. 239.
Action for malicious prosecution. In September, 1910, the appellant was deputy game commissioner, and resided at Salem. On Sunday, the 25th day of September, 1910, the plaintiff resided at Rolla, and the evidence tended to show that he, in company with two other citizens, was out hunting that day; that they killed several squirrels, and came back to Rolla about dark, and plaintiff carried a hunting coat rolled up under his arm. It was generally talked through the town that the plaintiff had killed a wild turkey that day. On Tuesday, the 27th day of September, Prof. Scott, a teacher in the Rolla School of Mines, who had learned that it was charged some one had killed a turkey, wrote to the defendant, stating: In response to the letter, the appellant came to Rolla the following Thursday, and on his arrival, he, with the city marshal, walked into one of the saloons where they heard talk about the plaintiff having killed a wild turkey. The appellant called on Prof. Scott and asked him for the information he had as to the violation of the game law. The professor directed him to a boy and told him the boy could give him the information. In company with the city marshal, the game warden sought an interview with the boy. In looking up the testimony they interviewed an aged lady who was keeping house for the father of the boy. The lady told them that she did not want to get mixed up in the affair, and for them to go and see the boy who was at school, and he would tell them. They went to the schoolhouse, called out the boy, and he informed them that he had seen the plaintiff coming into town Sunday evening, carrying a sack with a wild turkey in it, and that he also heard the plaintiff say at that time: "Now say I am afraid to kill one out of season." The appellant afterwards met a colored man by the name of Allison, who also told him that he had seen the plaintiff with the wild turkey in a sack.
After obtaining this information, the appellant appeared before a justice of the peace and asked to have the plaintiff arrested for killing the turkey during the "closed season." The justice refused to issue a warrant until the defendant saw the prosecuting attorney. Thereupon, the defendant called on the prosecuting attorney, and after consulting him, an affidavit was made, the prosecuting attorney telling the defendant that he believed he could make a case. When this affidavit was brought to the prosecuting attorney, he saw it was insufficient, and then prepared an information, verified with his own oath, charging the plaintiff herein with killing a wild turkey in violation of law. After the information was filed, the plaintiff was arrested and taken before the justice. The case was set for trial in the afternoon of the same day, and while the appellant herein and the prosecuting attorney were together, they saw the boy who had given the appellant and the marshal the information in the morning. The prosecuting attorney then interviewed the boy, and the boy told him that he had told the game warden in the morning that he had seen the plaintiff with a wild turkey, but that he was mistaken and would not testify to what he had told the appellant. The appellant then informed the prosecuting attorney that the old lady he had interviewed in the morning did not want to testify, and he had promised her that he would not call her as a witness, and thereupon the prosecuting attorney dismissed the case.
In addition to the above, a Mrs. Strain testified at the trial that she thought she heard the plaintiff say: "Say I am not game to kill them out of season," and that she told her husband what she had heard.
The petition asked for a judgment of one thousand dollars actual damages, and one thousand dollars punitive damages. The cause was tried before a jury, resulting in a verdict in favor of the plaintiff for the sum of one dollar actual damages, and from the judgment rendered thereon the defendant appealed to this court.
At the close of the plaintiff's case, the defendant asked a demurrer to the evidence, but the same was overruled, and such action of the court is assigned as error.
As it is essential that the plaintiff's complaint affirmatively allege all the facts necessary to support his action, it follows that he must assume the burden of proof in respect to each of these necessary allegations, and by his evidence, establish to the satisfaction of the court and jury, that he has been prosecuted by the defendant; that the prosecution terminated in his favor, and that it was malicious and without probable cause.
There is no conflict in the authorities on this proposition. There is, however, much conflict as to what makes a prima facie case of want of probable cause. It is frequently said that the record, showing the discharge of the defendant in the prosecution, makes a prima facie case of the want of probable cause, and with the introduction of this record the plaintiff has made a case for the jury, and the defendant is called upon to...
To continue reading
Request your trial