Pinson v. Campbell

• Citation: 124 Mo. App. 260,101 S.W. 621
• Parties: PINSON v. CAMPBELL.
• Decision Date: 02 April 1907
• Court: Court of Appeal of Missouri (US)

101 S.W. 621

124 Mo. A. 260

PINSON v. CAMPBELL.

St. Louis Court of Appeals. Missouri.

April 2, 1907.

1. WITNESSES — COMPETENCY — CONFIDENTIAL COMMUNICATIONS—ATTORNEY AND CLIENT.

An attorney employed by prosecutor to assist in a criminal prosecution was not a competent witness against prosecutor in a subsequent action for malicious prosecution either at common law or under Rev. St. 1899, § 4659 [Ann. St. 1906, p. 2539], providing that an attorney is incompetent to testify concerning any communication by his client without his consent.

2. SAME—WAIVER OF OBJECTION.

Prosecutor having testified on cross-examination in the action for malicious prosecution as to the employment of the attorney, and stated all his conversations with the attorney in respect to the case, he waived the incompetency of the attorney.

3. MALICIOUS PROSECUTION — MALICE AND WANT OF PROBABLE CAUSE.

Malice and want of probable cause must co-exist to warrant an action for malicious prosecution.

4. SAME—WANT OF PROBABLE CAUSE—ADVICE OF PROSECUTING OFFICER.

In an action for malicious prosecution, the fact that prosecutor consulted the prosecuting attorney in good faith and communicated to him all the ascertainable facts, and acted on his advice, is a good defense.

5. SAME—QUESTIONS FOR JURY.

In an action for malicious prosecution, held, that the question of probable cause was one for the jury.

6. SAME—INSTRUCTIONS.

In an action for malicious prosecution, an instruction defining probable cause to be a reasonable ground for suspicion supported by circumstances, and evidence sufficiently strong to warrant a cautious man in the belief that the person accused is guilty of the offense charged, was proper.

7. CHATTEL MORTGAGES—SALE BY MORTGAGOR —CRIMINAL RESPONSIBILITY—ELEMENTS OF OFFENSE.

Rev. St. 1899, § 1933 [Ann. St. 1906, p. 1315], provides that every chattel mortgagor who shall convey the mortgaged property without the written consent of the mortgagee and without informing the purchaser, for the purpose of defrauding the mortgagee or purchaser, shall be deemed guilty, etc. Held, that the offense cannot be committed under the statute without an intent to defraud the mortgagee or purchaser.

Appeal from Circuit Court, Dent County; L. B. Woodside, Judge.

Action by William Pinson against Joseph G. Campbell. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

The action is to recover damages for malicious prosecution. The petition alleges, in substance, that defendant in 1904 appeared before the clerk of the circuit court of Dent county on three successive occasions, and willfully, maliciously, and without probable cause made affidavits charging plaintiff with unlawfully and feloniously selling to defendant an undivided one-half interest in goods, wares, and store fixtures covered by a chattel mortgage, which plaintiff had theretofore executed to one T. L. Collier; that informations predicated on each of said affidavits were filed in the circuit court of said Dent county and warrants for the arrest of plaintiff were issued thereon, upon each of which plaintiff was arrested and required to and did enter into recognizances for his appearance in the Dent circuit court to answer said informations; that on the last of said informations plaintiff was put upon his trial in the Dent circuit court on December 2, 1904, and found "not guilty" by a jury. The answer admitted that three successive affidavits were made by defendant, charging plaintiff with having fraudulently sold defendant an interest in goods, wares, and store fixtures covered by a chattel mortgage theretofore executed to T. L. Collier, and alleged that by inadvertence defendant signed the first information prepared by the prosecuting attorney and the latter the first affidavit, necessitating a new or second affidavit and information which were filed; that the second information was quashed, whereupon the third affidavit and information were filed, upon which defendant was tried and acquitted. As a defense the answer alleges the following: "Defendant further states that before he ever filed the first complaint against plaintiff he consulted with the prosecuting attorney of Dent county, Mo., to wit, G. W. Hodges, with a view to obtain his advice as to the liability of said plaintiff to criminal prosecution, and that he communicated to such prosecuting attorney all the facts within his knowledge or that he might have learned by reasonable diligence on the guilt or innocence of the plaintiff of said crime, and that the prosecuting attorney gave it as his legal opinion that the said plaintiff was liable to criminal prosecution, and that thereupon defendant decided to institute prosecution against plaintiff, in good faith and in pursuance of the advice and opinion expressed by the said prosecuting attorney, and that said prosecuting attorney then prepared a complaint for defendant to sign and swear to, and that defendant left said complaint with the prosecuting attorney and had nothing further to do with the matter, except signing the new complaints as hereinbefore stated; that the prosecuting attorney himself, as an official, attended to the preparation of his official informations and the filing of all papers in the cause with the circuit clerk and the procuring the issuance and service of warrant therein. Defendant states that said prosecution was not malicious, and was not without probable cause; that defendant had good reason to believe and did believe the plaintiff guilty of the charge alleged against him in said complaint." A verdict, signed by 11 of the jurors, was returned, finding the issues for plaintiff, and assessing his actual damages at $150, and that he was not entitled to exemplary damages. Timely motions for new trial and in arrest of judgment proving of no avail, defendant appealed.

It developed on the trial that plaintiff was conducting a small grocery store and meatshop in the city of Salem, Mo., and had given a mortgage on the fixtures and furniture of his establishment to T. L. Collier. Plaintiff sold one-half his interest in the grocery store and meatshop to defendant for $300. Defendant paid $205 of the purchase price in cash and gave his note for $95. The firm of Pinson & Campbell borrowed $125 from a Salem bank. In about three months after his purchase defendant sold his interest in the concern to O. S. Rouse for $100 cash, Rouse's note for $100, and the note for $95 defendant had given Pinson, and for the further consideration that Rouse and Pinson assumed the payment of the note of $125 to the bank. Pinson and Rouse mortgaged the store and shop to a St. Louis party for a debt they failed to pay, and were closed out under this and the T. L. Collier mortgage. The bank note for $125 was not paid, and the evidence shows both Pinson and Rouse are insolvent. Plaintiff testified that he told defendant when he bought into the concern about the T. L. Collier mortgage, and it was agreed that Campbell's note of $95 should be applied to extinguish one-half of the mortgage, and, when Rouse bought out defendant, it was agreed that he (Rouse) would assume the payment of one-half of said mortgage. Defendant testified plaintiff did not mention the Collier mortgage to him, and that he did not know of it and did not hear of it until about the time...