Lehmer v. Smith
| Decision Date | 27 May 1926 |
| Citation | 284 S.W. 167,220 Mo.App. 251 |
| Parties | FRANCES LEHMER, RESPONDENT, v. J. W. SMITH, APPELLANT. |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of Polk County.--Hon. C. H. Skinker Judge.
AFFIRMED.
Judgment affirmed.
Roy M Huff, Lee E. Crook, W. A. Dollarhide and T. H. Douglass for appellant.
(1) Before an action for malicious prosecution can be maintained the following essential elements must be present: 1. The prosecution must have terminated favorably to the plaintiff. 2. The prosecution must have been instituted maliciously. 3. The prosecution must have been without probable cause. Beck v. Forsee, 199 S.W. 734. Before an action for malicious prosecution, either civil or criminal can be maintained, the rule is well settled that the alleged malicious action must have terminated in favor of the plaintiff. Weber v. Stroble, 225 S.W. 927-8; Sharp v. Johnston, 76 Mo. 660; Mooney v Kennett, 19 Mo. 551. There was no termination of the prosecution in the case at bar in favor of the plaintiff before the police judge. A jury was empaneled to try the case and the police judge attempted to take the case away from the jury and refused to permit them to decide the case. He had no authority to do this. His action was void and of no effect and left the case of the city of El Dorado Springs against M. E. Atkinson and Frances Lehmer still pending in the police court. A police judge of a city of the fourth class is a statutory officer and has the same powers and authority within the range of his jurisdiction and must follow the same procedure in the trial of cases as a justice of the peace in misdemeanor cases. Section 8432, R. S. 1919. The defendant or the prosecuting attorney may demand a jury trial before a justice of the peace in misdemeanor cases, and the jury, after being empaneled and sworn, has the sole authority to decide the case. Section 3780, 3781, 3782, 3783 and 3784, R. S. 1919. A justice of the peace has no authority to take a case from the jury. 24 Cyc. 584. A justice may instruct the jury as to his rulings on the testimony but he cannot direct them as to their verdict. State ex rel. v. Cline, 85 Mo.App. 628; Lamis v. Ry. Co., 17 Mo.App. 340, 355. There having been no final termination of the cause, no legal acquittal, the action on plaintiff's (respondent's) amended petition cannot be maintained. Wilkerson v. McGhee, 178 S.W. 471, 265 Mo. 574; Moore v. Sanbourin, 42 Mo. 490; Kelley v. Osborne, 86 Mo.App. 239; Leonard v. Transit Co., 115 Mo.App. 349; 26 Cyc. , pp. 55 and 57; Mooney v. Kennett, 19 Mo. 551. Under section 8441, Revised Statutes 1919, either the city or the defendant has right of appeal from an adverse decision on final termination in police court. The defendant (appellant) is neither the city nor the defendant in the cause before the police court, hence he had no right of appeal if the case had been finally decided against him. The police court docket showing on its face that there had been no final termination of the cause against M. E. Atkinson and Frances Lehmer, was not competent evidence. For the above reasons and authorities cited in support of same, we submit that the court should have sustained demurrer to plaintiff's evidence at close of plaintiff's evidence, and also at close of whole case. The same proposition was again raised by defendant's offered instruction "F" which the court refused. This was error as above shown. (2) Malice in law is a wrongful act done intentionally without legal justification or excuse. Plaintiff's instruction No. 4 was erroneous by reason of the omission of the words "without legal justification or excuse." Waddell v. Krause, 241 S.W. 964. This error was not cured by other instructions in the case.
Collins & Osborne and Herman Pufahl for respondent.
(1) We have no fault to find with appellant's abstract proposition of law under his point 1. However in the case at bar there was a final termination of the case. The judgment of the police judge set out on page 32 of appellant's Abstract says, "that the court sustains the motion to dismiss the case and taxes the costs against the prosecuting witness, J. W. Smith." No appeal having been taken from that judgment it is final; the case of the city of Eldorado Springs against the plaintiff, Francis Lehmer, was dismissed. The city had the right of appeal from that judgment under section 8441, Revised Statutes 1919, but failed to take any appeal; neither were any steps taken by the city to prohibit the police judge from discharging the defendants. Therefore that judgment is final. However, in the case at bar, the abstract of the record of appellant shows that the attorneys for the city asked for a jury. On the top of page 32 is the following: Attorneys for the city asked for a jury trial and summons for twelve men issued." The city was not entitled to a jury trial and had no right to demand a jury, and the action of the police judge in summoning a jury at the request of the city was clearly in excess of his authority. Section 8432, Revised Statutes 1919. (2) The plaintiff's instruction No. 4 defining malice has been so often upheld by the various Courts of Appeal and by the Supreme Court, that it seems needless and useless to cite authorities. However, there is one decision by the Supreme Court of this State that so fully answers the contention of the appellant that we cite it herewith. State ex rel. Rothenheber v. Allen, et al., Judges, 270 S.W. 633.
This is an action for damages for malicious prosecution and for assault and battery. The cause was filed in Cedar county, but the venue was changed to Polk. The issues were submitted to a jury, resulting in a verdict on the count for malicious prosecution in the sum of $ 1000 for actual damages and $ 750 for punitive damages. On the count for assault and battery the verdict was for $ 500 for actual damages and $ 300 punitive. Motion for a new trial was duly filed. Plaintiff filed a remittitur of $ 450 of the actual damages found on the count for assault and battery. Judgment, after the remittitur, was entered and defendant appealed.
In the first count of her amended petition plaintiff alleged that on September 11, 1924, the defendant maliciously intending to injure her in her good name and reputation appeared before the police judge of the city of Eldorado Springs, and intending to oppress plaintiff and to deprive her of her liberty and to bring shame and disgrace upon her, and without probable cause, charged plaintiff with having committed an act of lewdness, and did maliciously and without probable cause procure said police judge to issue a warrant for the arrest of plaintiff upon said charge. Plaintiff further alleged that she was arrested upon said charge, tried and discharged, and that because of the alleged wrongful prosecution she suffered great in convenience, pain and mental anguish, humiliation, distress, etc. to her damage.
The second count of the amended petition alleged that on September 11, 1924, at the City of Eldorado Springs defendant without cause or provocation wilfully, wrongfully and unlawfully assaulted, and beat plaintiff, etc.
In answer to the first count defendant admitted that he made the complaint before the police judge, and admitted that plaintiff was arrested on said complaint and gave bail, but denied generally all other allegations. Further answering the first count defendant alleged that before making the complaint before the police judge he consulted the city attorney of Eldorado Springs and other reputable attorneys and in good faith and without malice made a full and complete disclosure of all the facts and circumstances in connection with the alleged offense of plaintiff, and was advised that an offense had been committed by plaintiff, and that on the advice of counsel he made the complaint mentioned in the first count of plaintiff's petition. Further answering the first count defendant alleged that plaintiff was in fact guilty of the offense alleged in the complaint filed before the police judge. Further answering the first count defendant alleged that the city of Eldorado Springs is a city of the fourth class; that plaintiff went to trial in the police court of said city before a jury, and that the police judge, without lawful right, sustained a motion to dismiss, and that therefore that cause is, in legal contemplation, still pending in the said police court and has not been finally terminated.
Defendant's answer to the second count was a general denial. A reply traversed the allegations of new matter contained in the answer. Defendant makes several separate assignments, but these may be grouped as follows: (1) Failure to give defendant's peremptory direction at the close of the case so far as concerned the first count; (2) improper joinder of causes; (3) the giving and refusing of instructions; (4) the admission of evidence.
As we gather from defendant's brief and written argument the demurrer is bottomed upon two propositions: First, that there is no substantial evidence that the prosecution complained of was instituted maliciously and without probable cause; and second, that the cause filed in the police court is, in legal contemplation, still there pending and is not terminated in favor of plaintiff.
Plaintiff was twenty-four years of age and married, but was not, at the time, living with her husband. Her parents resided in Eldorado Springs and she made her home with them. Defendant is a physician and surgeon of Eldorado Springs. In October 1923, defendant operated upon plaintiff for appendicitis. After her recovery defendant employed plaintiff in his office paying her $ 30 per month. She assisted about the office and also prepared ...
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