Kennedy v. Holladay

• Decision Date: 19 April 1887
• Citation: 25 Mo.App. 503
• Parties: JAMES A. KENNEDY, Respondent, v. HIRAM N. HOLLADAY, Appellant.
• Court: Missouri Court of Appeals

25 Mo.App. 503

JAMES A. KENNEDY, Respondent, v. HIRAM N. HOLLADAY, Appellant.

Court of Appeals of Missouri, St. Louis.

April 19, 1887

APPEAL from the Madison County Circuit Court, JAMES D. FOX, Judge.

Reversed and remanded.

CARTER & WEBER, CHAPMAN, HOLLIDAY, EMERSON, and CAHOON &amp CAHOON, for the appellant: The plaintiff's character was not in issue, not having been attacked. The State v. Thomas, 78 Mo. 343; The State v. Cooper, 71 Mo. 436. The evidence of statements of the defendant, tending to show his animus was too uncertain as to time. Connet v. Bertelsman, 61 Mo. 118; Ringo v Richardson, 53 Mo. 385; Johnson v. Quarles, 46 Mo. 423. Evidence by the plaintiff that he was not guilty of the offence of which he was charged was incompetent. Brennan v. Tracy, 2 Mo.App. 540; Rainey v Vallandingham, 9 Mo. 817; Hickman v. Griffin, 6 Mo. 41. The issue in malicious prosecution, is not the guilt or innocence of the plaintiff. Sharpe v. Johnston, 59 Mo. 574; Van Sickles v. Brown, 68 Mo. 634. The opinion of the defendant as to the extent of his damage is not evidence. Winkler v. Railroad, 18 Mo.App. 109; White v. Stoner, 18 Mo.App. 540; Belch v. Railroad, 18 Mo.App. 80. To support an ordinary action of malicious prosecution, it must appear affirmatively, first, that the prosecution was instituted wilfully, falsely, and maliciously, and second, without probable cause, and both must concur, otherwise there can be no recovery. Sappington v. Watson, 50 Mo. 83; Merke v. Ottensmeyer, 50 Mo. 46; Kelton v. Bevins, 5 Am. Dec. 670; Bell v. Graham, 9 Am. Dec. 687; Turner v. Walker, 22 Am. Dec. 329; Leidig v. Rawson, 29 Am. Dec. 354; Williams v. Hunter, 14 Am. Dec. 597; French v. Smith, 24 Am. Dec. 616; Mowery v. Miller, 24 Am. Dec. 680; Adams v. Lisher, 25 Am. Dec. 102. And malice may be inferred from the want of probable cause, but probable cause can not be inferred from proof of malice. Casperson v. Sproule, 39 Mo. 39; Hickman v. Griffin, 6 Mo. 40; Brant v. Higgins, 10 Mo. 728; Sharpe v. Johnston, 59 Mo. 557; Holliday v. Sterling, 62 Mo. 321. This defence of advice of counsel is admissible under the general issue. Burris v. North, 64 Mo. 426; Sparling v. Conway, 75 Mo. 511; S. C., 6 Mo.App. 285; Northrup v. Ins. Co., 47 Mo. 442. The defendant must show that he, in good faith, communicated to such counsel all the facts bearing upon the guilt or innocence of the accused, which he knew, or, by reasonable diligence, could have ascertained; and he must not omit to state a fact known to him, although he honestly supposed it was not material. Hill v. Palm, 38 Mo. 21; Williams v. Van Meter, 8 Mo. 343; Sharpe v. Johnston, 76 Mo. 660; S. C., 59 Mo. 557; Stone v. Swift, 16 Am. Dec. 349; Turner v. Walker, 22 Am. Dec. 327. If there was probable cause, no action lies, however maliciously prosecuted. Green and Meyer Mo. Prac., sect. 749; Sharpe v. Johnston, 59 Mo. 557; Burris v. North, 64 Mo. 426; Ulmer v. Leland, 10 Am. Dec. 48; Adams v. Lisher, 25 Am. Dec. 102. The original prosecution must have terminated, that is ended, in plaintiff's favor. Green and Meyer Mo. Prac., sects. 751 and 752; 2 Bouv. Law Dict. 98; 1 Hill on Torts, 441; Moore v. Sanborn, 42 Mo. 494; Mooney v. Kent, 19 Mo. 555; Whittlesey's Mo. Prac., sect. 138, p. 161; Spring v. Besore, 12 B. Mon. 551; Wood v. Laycock, 1 Met (Ky.) 192; Winn v. Peckham, 42 Wis. 493; Leever v. Hammill, 57 Ind. 423; Scott v. Shelor, 28 Gratt. 891; Hamilburg v. Shepard, 119 Mass. 30; Gorrell v. Snow, 31 Ind. 215; Brown v. Randall, 36 Conn. 56. The entering of a nolle prosequi is not such a termination of the prosecution as is requisite for the bringing of the action of malicious prosecution. 2 Greenl. Evid. 452; 2 Starkie Evid. 490; 2 Selwyn Nisi Prius, 807, 811, and 812; Green and Meyer Mo. Prac. sect. 753, p. 292; Blackstone Com. Bk. 3, p. 126 and note; 1 Hill on Torts, sect. 27, pp. 454, 455; Mooney v. Kent, 19 Mo. 55; Graves v. Dawson, 130 Mass. 80, 81; S. C., 133 Mass. 420; Parker v. Huntington and Farley, 2 Gray 124; Coupal v. Ward, 106 Mass. 290; Cardival v. Smith, 108 Mass. 158; Parkey v. Farley, 10 Cushing (Mass.) 279; Garing v. Frazier, (Maine) 19 Cent. Law Jour. 457; Smith v. Shackleford, 1 Natt. and Mc. 36; Bacon v. Towne, 4 Cush. 217; Sayless v. Briggs, 4 Met. 421; Brown v. Lakeman, 12 Cushing (Mass.) 482; Kirkpatrick v. Kirkpatrick, 39 Pa.St. 288; Garing v. Fraser, 70 Maine; S. C., 23 Am. Law Reg. 805, 806; 8 U. S. Digest, 942; 3 U. S. Digest, 436; Goddard v. Smith, 6 Mod. 261; 21 Wend. 281; 12 Cow. 219; 18 How. Pr. 529; 9 Abb. Pr. 242; Goddard v. Smith, 1 Salk. 21. The expert accountants should have been permitted to testify. 1 Greenl. Evid., sect. 93; Roberts v. Doxon, Peake's Cas. 83; Ins. Co. v. Hanlon, S. C. Pa. Leg. Int. 1874, 372.

WILLIAM N. NALLE, associated with G. A. STANDARD and J. PERRY JOHNSON, for the respondent: Good character is a circumstance going to establish want of probable cause, and, as a defence to the charge of felony, " very persuasive." Warlick v. Peterson, 58 Mo. 408; Rogers v. Troost, 51 Mo. 470; The State v. Murphy, 52 Mo. 251; Gregory v. Chambers, 78 Mo. 294. Evidently, the appellant misapprehends the purpose of the evidence. The State v. Claudius, 1 Mo.App. 551; Fellows v. Goodman, 49 Mo. 62; Buckley v. Knapp, 48 Mo. 162, 163, 164. Turner's testimony was competent. The prosecution had not ended, and it was before this action was instituted. Neider's statement could not destroy it. 2 3 Greenl. on Evid. [3 Ed.] sect. 15; Hays v. Waller, Mo. 222; Hicks v. Griffin, 6 Mo. 37; The State v. Anderson, 19 Mo. 241; Billings v. St. Louis, 11 Mo. 357; The State v. Hall, 85 Mo. 669. The evidence of the respondent, that he " did not appropriate eleven hundred dollars, or any other sum, of Holladay's money," and as to how he " tried to live," etc., was all competent. Winters v. Railroad, 39 Mo. 498; Buckley v. Knapp, 48 Mo. 162, 163, 164; Poston v. See, 54 Mo. 291. The appellant's bond, and all that resulted thereunder, were competent, as tending to show a want of good faith, a want of probable cause, and malice as well. The bond was an admission, in writing, made whilst the prosecution of the indictment was pending, and what followed showed that it had been acted upon. They were all admissions. 1 Greenl. on Evid. [8 Ed.] sects. 27, 201, 207, 208; Hays v. Waller, 2 Mo. 222; Hicks v. Griffin, 6 Mo. 37; The State v. Hall, 85 Mo. 669; Buckley v. Knapp, 48 Mo. 162. It was solely a question for the jury, as to whether the appellant consulted with his attorney in good faith. This issue was tendered by the appellant, not by the appellee. Billings v. St. Louis, 11 Mo. 357; The State v. Anderson, 19 Mo. 241.

OPINION

THOMPSON J.

This was an action for the malicious prosecution of an indictment for embezzlement and larceny. The petition charges, in substance, that the defendant falsely and maliciously, and without probable cause, by testimony given before the grand jury, charged the plaintiff with embezzling the sum of $1,127.22, intrusted to him by the defendant, as his agent, whereby an indictment was returned against the plaintiff, charging him with such embezzlement and larceny, the plaintiff arrested thereon, and discharged therefrom at the next term of court, by reason of the refusal of the defendant to prosecute the indictment, and the dismissal of the same.

The petition lays the plaintiff's damages at ten thousand dollars. The answer is a general denial, and, also, a substantive defence, setting up that the indictment was dismissed with the consent of the plaintiff and his counsel. A trial before a jury resulted in a verdict and judgment for one thousand and fifty dollars, from which the defendant prosecutes this appeal. The trial is said to have lasted several days. The record abounds with exceptions and objections. The motion for a new trial contains twenty-one points, and sixteen distinct assignments of error are pressed upon the attention of the court in the appellant's printed argument. Although the bill of exceptions contains ninety solid pages of type-writer print, without extra spaces between the lines, no index of the matter contained therein is furnished, but a long fee bill is annexed to the transcript. The statement of the appellant is very long, but, though its correctness is challenged by the respondent, it does not point out the pages of the record where the particular matters of exception are found. It appears, however, to be, for the most part, a transcript of the record.

I. A witness for the plaintiff was permitted to testify to the plaintiff's good reputation in the community for honesty. This was error. Brennan v. Tracy, 2 Mo.App. 540; Cornwall v. Richardson, Ry. & M. 305; Guy v Gregory, 9 Carr. & P. 584, 587; Odgers on Slan. & Lib. 298. The rule in respect of the plaintiff's character, in actions for slander, libel, and malicious prosecution, is the same as that in respect of the defendant's character in criminal prosecutions. The plaintiff's character is presumed to be good until challenged by the defendant; and the courts have, consequently, united upon the rule that the plaintiff can not give evidence of his general character, in these actions, unless such character is put in issue by the pleadings, or has been attacked on the cross-examination of his witnesses, or, by direct evidence on the part of the defendant. The cases cited in support of this ruling of the trial court ( Miller v. Brown, 3 Mo. 127; Gregory v. Chambers, 78 Mo. 294, 300), were cases where the plaintiff's character or reputation was first put in issue by the defendant. It is true, that it may be plausibly argued that the rule should work both ways; that, unless the plaintiff's character is an element to be taken into consideration by the jury, in estimating damages, neither party should be...