Miller v. Chicago, M. & St. P. Ry. Co.

• Decision Date: 11 March 1890
• Citation: 41 F. 898
• Court: U.S. District Court — Western District of Missouri
• Parties: MILLER v. CHICAGO, M. & ST. P. RY. CO.

41 F. 898

MILLER v. CHICAGO, M. & ST. P. RY. CO.

United States Circuit Court, W.D. Missouri.

March 11, 1890

This suit was brought by T. H. B. Miller against the Chicago Milwaukee & St. Paul Railway Company for maliciously causing his arrest and imprisonment upon a charge of arson in burning its depot at Niantic, Livingston county, Mo. Plaintiff was tried before a committing magistrate, and held to answer to the grand jury. The grand jury ignored the bill, whereupon this suit was instituted. At the trial, the question under investigation being whether the defendant's agents acted without probable cause in instituting the prosecution, it was claimed on behalf of the plaintiff that one Kennedy, a section hand, upon whose information, supported in part by others, the prosecution was begun, was a man of bad reputation as to veracity, and that defendant's agents were negligent in not ascertaining that fact and acting accordingly. Upon this point the following proceedings were had:

'Mr Waters, (for plaintiff.) I propose, with the permission of the court, to read the testimony upon the preliminary examination, showing the character of this man Kennedy, whom they relied on for their information. The Court. I examined that question last evening, Colonel, and I am satisfied that the evidence of those witnesses is incompetent until you establish a foundation showing that this party had some reason to believe that he was not a man of veracity. The rule in that respect is that the law presumes that every citizen has a good character, that he lives in the peace of the state, and that he is a man of truth and veracity, until the contrary is made to appear. In dealing with our fellow-citizens, we have the right to assume that men tell the truth, and that what they state is true, without instituting an inquiry in the neighborhood to ascertain whether they are under tongue of good repute. Of course, if a man has information, and don't show diligence in certain contingencies of physical facts, sometimes he is held liable for what he might have ascertained. But in this particular the presumption is in favor of the good name and reputation of every citizen until the contrary appears; and, until you can show that the prosecution in this case had possession of facts and circumstances which should have put them upon inquiry as to the character of this man, I cannot admit that evidence. Mr. Waters. The ground on which I offered it was this, your honor: The prosecutor swears that he acted upon the information that he obtained from two of the defendant's employes,-- Watson, the detective; Kennedy the section man; and so much more reliance, according to his own statement, did he place upon Kennedy than upon the detective, that he would not act until he had talked with the section man, who then came in and gave him the information. Now, there are two of the defendant's employes, not strangers, carrying information to the prosecuting attorney. It is not a charge on the prosecuting attorney that he ought to have noticed, but the defendant or its servants who were engaged in this prosecution; and he insisted upon it, and had that man to come down there, and then, upon the information got from both employes, he advised this prosecution. Now, if that employe who is furnishing the evidence for the state, upon which the state was giving its opinion, was a man of notoriously bad character in the neighborhood, it occurs to me that it is proper to show that. By the Court. Here is a witness, the prosecutor, who did not live in that neighborhood at all, and he is not supposed to know what is common fame in it; and if a party is to be subjected to an action for malicious prosecution upon the ground that a person who lives in the neighborhood comes to him and tells him certain facts, as this witness does, and it afterwards turns out that they can get a lot of witnesses to impeach the veracity of that witness in the methods ordinarily known, and that the man was not under the tongue of good repute, why, no man would be safe in instituting a prosecution of that sort. I don't think that evidence is admissible in any state of the case, because this case is to be tried as the facts then appeared to the party instituting the prosectuion, from the best lights he had before him. I don't think the law will justify me in going to the extent of saying that he should institute an inquiry in that neighborhood to ascertain whether anybody would come in and swear that that man was not a reputable citizen, and not worthy of credibility. I am not able to find any case or any principle that goes to that extent, and I gave the case considerable examination last night. The other rule, that a man has to give to his attorney the information that he has, or which he might have known by the exercise of ordinary diligence, runs in a different direction from this; and I do not think any case can be found, or any principle of law, that would carry the rule to the extent that is sought in this case; and, until more is developed, I shall have to exclude that evidence.'

At the conclusion of the plaintiff's evidence, which is sufficiently set out in the opinion, the defendant demurred thereto.

L. H. Waters and R. A. Debolt, for plaintiff.

Pratt, McCrary, Ferry & Hagerman, for defendant.

PHILIPS J., (orally.)

The question to be decided here arises on a demurrer to the evidence, or an instruction asked on the part of the defendant to the effect that, notwithstanding the evidence introduced on the part of the plaintiff, the jury should find the issues for the defendant. Such a demurrer, of course, admits the truth of the facts as established by the evidence on the part of the plaintiff, and such inference as a jury might be warranted in making therefrom within the bounds of reason. So this demurrer is to be considered upon that theory of the evidence. The law in respect to actions for malicious prosecution imposes upon the plaintiff the burden of proof. It devolves upon him to prove, in the first instance, that there was a prosecution instituted and inaugurated by the defendant against him for some offense. It devolves upon the plaintiff, in the next place, to prove that the charge made or preferred by the prosecutor was false; next, that the defendant was instigated by malice against the plaintiff; and next, that he made the charge without reasonable or probable cause to believe the plaintiff guilty. And, unless all these facts be proved to the satisfaction of the jury, they should find for the defendant. This burden the plaintiff has assumed in this case; and the question is, has he presented a prima facie case that would entitle him to take the opinion of a jury?

In the first place, the pleading itself alleges, and the plaintiff's evidence shows, that, upon an investigation had and a trial conducted before the magistrate, the magistrate found that an offense had been committed, and that there was probable cause to believe the plaintiff here Miller, was the guilty party. The petition further avers the fact that the grand jury, upon a subsequent investigation, failed to find a true bill against the defendant. They ignored the bill, and thereupon the defendant, Miller, in that proceeding was discharged. Now, the first question which presents itself for determination is, what is the legal effect, and what is the legal conclusion to be drawn from, these two adverse actions of the two judicial bodies? The very matter under consideration before the trial magistrate is the question of the existence of probable cause. That is the fact upon which he passes. He has no jurisdiction to determine the final guilt of the party; but the object of the investigation is to determine, in the first place, whether an offense has been committed against the peace and dignity of the state; and second, who is the guilty party, or whether there is probable cause to believe that the party charged is the offender. The magistrate has ample jurisdiction for this purpose. He proceeds according to the usages and forms which have obtained in courts of justice for the administration of law. Evidence is heard, both for the prosecution and for the defense. The state is represented by the county attorney, and the defendant is entitled therein to demand his constitutional privilege of being heard by counsel, and to have the process of the court for witnesses, and a full trial and inquiry into the whole facts of the case in determining the existence or non-existence of the probable cause. Of course, it has all the dignity and solemnity of a judicial proceeding. The books all say that, where the committing magistrate finds there is no probable cause to believe the defendant is the guilty party, this conclusion and judgment of the magistrate present a case of most persuasive evidence that the prosecution is without probable cause; and counsel for plaintiff, in such case, perhaps is right in saying that, in the trial of an action for malicious prosecution, plaintiff might, after the usual preliminary proofs and the identification of the parties, etc., safely rest upon the judgment of the magistrate acquitting the defendant of the charge. It thereby presents a prima facie case, and perhaps the burden of proof would then devolve upon the defendant to show the existence of probable cause, and the absence of malicious intent. But this is not the case here. The magistrate found there was probable cause; and, if acquittal is most persuasive evidence of the absence of probable cause, the counterpart of the proposition ought to obtain,-- that committal makes out a persuasive case for the defendant; that there was probable cause for the institution of the proceeding. And if there was probable cause, no matter what the motive or intent of ...