Parli v. Reed

• Decision Date: 01 July 1883
• Citation: 2 P. 635,30 Kan. 534
• Parties: FREDERICK PARLI v. JOHN H. REED
• Court: Kansas Supreme Court

2 P. 635

30 Kan. 534

FREDERICK PARLI v. JOHN H. REED

Supreme Court of Kansas

July 1, 1883

Error from Marshall District Court.

ACTION brought by Reed against Parli, to recover damages for malicious prosecution. Verdict and judgment for plaintiff for $ 475 damages, at the December Term, 1882, of the district court. The defendant brings the judgment here for review. The opinion states the facts.

Judgment affirmed.

Cal. T Mann, and W. S. Glass, for plaintiff in error.

BREWER J. All the Justices concurring.

OPINION

BREWER, J.:

In an action in the district court of Marshall county, brought by defendant in error for malicious prosecution, he recovered a judgment against plaintiff in error for $ 475. Of this, plaintiff in error now complains. The facts are that plaintiff was arrested upon a complaint made by defendant charging, or supposed to charge, embezzlement. After being brought before the justice of the peace, the case was continued for three days and then dismissed, the parties not appearing.

Now, the first proposition is that neither the complaint filed before the justice, nor the warrant issued by him charges a crime, and this upon the ground that the complaint is simply upon belief. It reads, omitting caption and jurat, as follows:

"Frederick Parli, of lawful age, being duly sworn, says that one J. H. Reed, at the county of Marshall, and state of Kansas aforesaid, he has reason to believe did then and there commit the crime of fraud and embezzlement on the 1st day of August, 1882; and deponent prays that he, the said J. H. Reed, may be forthwith arrested and dealt with according to law. Further deponent saith not.--F. PARLI."

The warrant is similar in its language. Hence it is said that both complaint and warrant are absolutely void, and that only an action for false imprisonment will lie. This question has already been considered and decided in this court. (Bauer v. Clay, 8 Kan. 580.) In one count a party may charge a wrongful imprisonment, and set out facts showing that it was procured by means of a void warrant, and through malice and without probable cause. And though the complaint and warrant are void, the plaintiff will not be estopped from showing that the prosecution was malicious and without probable cause. And this is eminently just. The defendant filed this complaint; the justice treated it as sufficient, and issued a process commanding the officer to arrest plaintiff. The officer thought the process good, and arrested him. Now, though it appears that the defendant acted maliciously, and with intent to harass and oppress plaintiff, can he avoid responsibility for the exemplary damages which his malice justly subjects him to, upon the claim that the complaint and warrant were in fact insufficient and void? Can he, when he induces and uses process to accomplish the arrest of a party, turn around and say the process is void and he is not responsible? The use of insufficient process does not make a prosecution bona fide, or any the less malicious. ( Wicks v. Fentham, 4 Term Rep. 248; Pippet v. Hearn, 1 D. & R. 271; 2 Addison on Torts, § 881.)

Again, the court declared the prosecution without probable cause, and of this plaintiff in error complains. The ruling was correct. The court passes upon the law. It is its province to say what constitutes probable cause, for that is a matter of law, and if upon the undisputed facts there was no probable cause, it was its duty to so instruct the jury. (Wells on Law and Fact, § 291; Besson v. Southard, 10 N.Y. 236; Stone v. Crocker, 24 Pick. 81; Travis v. Smith, 1 Pa. 234; Hill v. Palm, 38 Mo. 13; Wells v. Parsons, 3 Har. [Del.] 505.)

Upon the facts, and taking them to the fullest extent and with every possible inference in favor of the defendant, there was no probable cause. It seems that plaintiff entered into a written contract with defendant to build an addition to his hotel. He proceeded with the work, received the first payment July 4, 1882, and the second, August 1, 1882. Of the first payment and plaintiff's disposition of it, no complaint is made. The second payment was made by defendant at his...