Moore v. Sauborin

• Decision Date: 31 March 1868
• Citation: 42 Mo. 490
• Parties: MATTHEW MOORE, Defendant in Error, v. FRANK SAUBORIN, Plaintiff in Error.
• Court: Missouri Supreme Court

42 Mo. 490

MATTHEW MOORE, Defendant in Error,

v.FRANK SAUBORIN, Plaintiff in Error.

Supreme Court of Missouri.

March Term, 1868.

Error to Sixth District Court.

Defendant in this action had originally instituted proceedings against plaintiff before David Bruner, justice of Montgomery county, upon an affidavit charging him with having stolen a certain neck-yoke and mule-stock. The material facts generally appear in the opinion of the court.

On the trial of the present cause the following instructions were given by the court at the instance of plaintiff, to which the defendant excepted:

1. If the jury believe from the evidence that the defendant made an affidavit before David Bruner, a justice of the peace, and caused the plaintiff to be arrested on a charge of larceny, and that the defendant had not probable cause to believe him guilty of the charge, they will find a verdict for the plaintiff and assess his damage at a sum not greater than three thousand dollars.

2. Although the jury may believe from the evidence that the neck-yoke was the property of defendant, and that it was in the blacksmith shop of plaintiff, yet unless the defendant had reasonable cause to believe that the plaintiff had taken, stolen, and carried away the property of defendant, they will find a verdict for the plaintiff.

3. If the jury find from the evidence that the defendant did not have reasonable cause to believe that the plaintiff had taken, stolen, and carried away the neck-yoke of defendant, then the jury may infer malice, and it is not necessary that the plaintiff should prove express malice.

4. If the jury should find a verdict for the plaintiff, they may take into consideration the actual damage, if any, he may have sustained to his character by the prosecution of him by the defendant; the trouble, inconvenience, and expense that he was put to; and also, the insult to his feelings; may render their verdict for any amount not exceeding three thousand dollars.

The court gave, at its own instance, the following instructions:

1. The plaintiff, to sustain his action, must prove malice in defendant, and also that there was no probable cause to institute the proceedings complained of, and that plaintiff has been damaged thereby.

2. That in this case it is not necessary for defendant to prove that the plaintiff stole or intended to steal, or was actually guilty of any offense whatsoever; for if there was any probable cause for the prosecution, the jury must find for the defendant.

3. If the jury find from the evidence in the case that the defendant was not prompted by malice, but solely by a desire to regain his property in a lawful manner, they will find for the defendant.

4. If the jury find that the defendant did wrongfully prosecute the plaintiff without sufficient cause, but was actuated by malice, they will find for the plaintiff.

F. J. Bowman, for plaintiff in error.

I. The new matter set forth in the amended answer of the defendant below is a full and sufficient defense to the action; and as no reply was made by plaintiff, the new matter set forth stands confessed, and judgment should have been entered thereon in favor of the defendant. (Gen. Stat. 1865, ch. 168, § 19; id. ch. 165, §§ 12, 16.)

II. The evidence shows that a full and final settlement of the whole controversy, as between the plaintiff and defendant, had been made before the commencement of this suit.

III. In actions for malicious prosecution it must appear that the plaintiff was acquitted of the charge made and complained of; whereas in this case the plaintiff below was found guilty, so far as any decision was rendered, of the charge preferred by the defendant below. (3 Blackst. Com. 126-7; 6 Mod. Rep. 216; 4 Cush. 217; 2 Greenl. on Ev. 452; 39 Penn. St. 288, a case distinctly in point; McCormick v. Sisson, 7 Cow. 715.)

IV. In the examination of David Bruner, defendant should have been allowed to show the conversation between the witness and defendant at the time of making the affidavit complained of, for the purpose of showing the want of malice upon the part of the defendant. (2 Greenl. on Ev. 453-4; Barron v. Mason, 31 Verm. 189; Antoinette Swain v. Jno. M. Stafford, 4 Ired. 392; 4 Verm. 363.)

V. The first instruction given by the court below, at the instance of the plaintiff, directs the jury to find for the plaintiff, although no malice be shown. This was clearly erroneous; for malice, as well as want of probable cause, must be shown, to entitle the plaintiff to recover. (Farmer v. Darling, 4 Bur. 1971, 1974; 39 Mo. 39; 2 Greenl. on Ev. 453; Johnson v. Sutton, 1 T. R. 510; id. 349; 1 Brown's P. C. 76.)

VI. If an erroneous instruction is given, the error is not cured by the giving of other instructions which, taken as a whole, may be considered as fairly presenting the law governing the case. (38 Mo. 268; Hickman v. Griffin, 6 Mo. 43; Jones v. Talbot, 4 Mo. 279; Alexander v. Harrison et al., 38 Mo. 268.)

VII. The second instruction given by the court below, at the instance of the plaintiff, is erroneous. (4 Ired. 392; Garton v. De Angelis, 6 Wend. 418; Alexander v. Harrison et al., 38 Mo. 368.)L. A. Thompson, for defendant in error.

I. The court below properly sustained the objection by plaintiff's counsel to the introduction of testimony to show that defendant was advised by the justice of the peace issuing the warrant that a criminal prosecution was warranted. (Williams v. Van Meter, 8 Mo. 339; Beal v. Robinson, 8 Ired. 276.)

II. The court below properly declared the law in giving the instructions to the jury. (Hickman v. Griffin, 6 Mo. 37; Brant v. Higgins, 10 Mo. 728; Casperson v. Sproule, 39 Mo. 39; Callahan v. Cafferata, 39 Mo. 136; Munns v. Dupont, 3 Washington's Cir. Court R. 31.)

FAGG, Judge, delivered the opinion of the court.

This was an action for malicious prosecution instituted in the Montgomery Circuit Court. The plaintiff obtained a judgment, which, upon an appeal taken to the Sixth District Court, was affirmed, and the case is now brought here by writ of error.

The points raised by the plaintiff in error refer to the exclusion of testimony offered on the part of the defendant below, the giving and refusing of instructions, and the failure of the plaintiff to reply to the new matter set up in the answer.

This court has frequently held that, when the instructions taken as a whole present the law of the case correctly, any objection to any one by itself, though good, will not be considered a misdirection of the jury.

Malice and want of probable cause together constitute the ground upon which alone the plaintiff can recover in such an action as this. The existence of both must be made to appear, although direct proof of malice is not necessary where the want of probable cause is satisfactorly established.

Without an examination in detail of the instructions given, it will be sufficient to say, generally, that they presented the law correctly, and in all respects as favorably for the defendant as the facts in the case warranted. Both of the instructions asked by the defendant were properly refused.

The theory of the defense, as gathered from these declarations of law, as well as the argument here, seems to be that to entitle the plaintiff to recover in this action it was incumbent on...