Renfro v. Prior

• Decision Date: 24 May 1886
• Citation: 22 Mo.App. 403
• Parties: PETER RENFRO, Respondent, v. GEORGE W. PRIOR, Appellant.
• Court: Missouri Court of Appeals

22 Mo.App. 403

PETER RENFRO, Respondent,

v.GEORGE W. PRIOR, Appellant.

Kansas City Court of Appeals, Missouri.

May 24, 1886.

APPEAL from Gasconade Circuit Court, HON. A. J. SEAY, Judge.

Reversed and remanded.

The case is stated in the opinion.

I. W. BOULWARE, for the appellant.

I. The existence of malice and want of probable cause are both necessary to sustain an action for malicious prosecution. A petition which does not allege both states no cause of action.

II. Defendant's objection to introduction of evidence should have been sustained as to the whole petition. The failure to aver that the prosecutions were without “probable cause,” in the first and fourth counts; and the words ““without any cause or provocation,” in the second count, are not equivalent to ““without probable cause.”

III. The amendment of the first count, after all evidence had been excluded under it, was improper and illegal. There was no evidence in support of it; no cause of action; and it tendered no issue. The amendment charged the merits and substantial issue, and was in violation of all rules of practice and legal proceedings; besides it was too late. Miles v. Vanhorn, 17 Ind. 245; sects. 3566, 3567, Rev. Stat.; Martin v. Martin, 27 Mo. 227; Kerr v. Bell, 44 Mo. 120; Irwin v. Chiles, 28 Mo. 576.

IV. The question as to defendant's social and family relations was illegal and improper. This was no standard for measuring damages. The right to show the pecuniary condition in a proper case may not be an open question in this state, but is this such a case?Marshal v. Ins. Co., 43 Mo. 586; Rothschild v. Ins. Co., 62 Mo. 356.

V. There must be actual malice to authorize exemplary damages. Did not the court err in directing such damages? The evidence tended strongly to show probable cause. Goodrich v. Warner, 1 Am. Law Reg. (O. S.) 569. So the instruction was wrong as to failure to prosecute plaintiff before the magistrate. The discharge by the justice is not such evidence of want of probable cause, as will alone sustain this action. Nor does the law require defendant, even after a prima facie case is made against him, to prove both probable cause and want of malice. Thorp v. Badlet, 25 Ill. 339; Stewart v. Sonneborne, 98 U. S. 187.

VI. The refusal of instruction asked by defendant to the effect that “malice is not necessarily inferred from want of probable cause,” was error sufficient for reversal. Sharp v. Johnson, 59 Mo. 557; Burris v. Worth, 64 Mo. 426; Vansickle v. Brown, 68 Mo. 627; Sharpe v. Johnson, 76 Mo. 660; Smith v. Howard, 28 Iowa 51; Cooley on Torts, 165. So of other instructions refused to defendant.

VII. The verdict was against the evidence, so far as to indicate bias and prejudice in the jury. Marshall v. Ins. Co., 43 Mo. 586; Rothschild v. Ins. Co., 62 Mo. 356; Price v. Evans, 49 Mo. 396; Spohn v. Railroad, Sup. Ct. Mo., October term, 1885, not yet published.

R. S. RYORS and S. MOSBY, also, for the appellant.

I. Even if the first count was amended by plaintiff before introducing his evidence, still the verdict cannot be sustained. The evidence was the same as to each count. Upon the issues thus presented and thus supported the jury found for defendant on second and third counts and for plaintiff on the first count. Such a verdict is not a rational verdict.

II. It is the province of appellate courts to reverse gross errors of trial jurors, even where the law has been

correctly declared. Spohn v. Railroad, Sup. Ct. Mo., October term, 1885.

W. S. POPE, for the respondent.

I. The amendment was unnecessary, as the petition stated that the charge was ““““ wholly without cause,” words of broader significance than probable cause. It was competent, in any event, to make the pleadings conform to the evidence. Sect. 3567, Rev. Stat.; Carr v. Moss, Sup. Ct. Mo., October term, 1885. Defendant was in no wise injured or misled.

II. The evidence as to the social and financial standing of defendant was altogether proper. Buckley v. Knapp, 48 Mo. 152; Holsey v. Brooks, 20 Ill. 115; Bump v. Betts, 23 Wend. (N. Y.) 85.

III. The instructions for plaintiff were all well warranted. The first is in the exact language approved in Hill v. Palm (38 Mo. 13), and has never since been questioned. Field on Damages, sect. 689. The second is supported by the following authorities and might have been much stronger: Field on Damages, sect. 681; Sappington v. Watson, 50 Mo. 83; Casperson v. Sproule, 39 Mo. 39; Brant v. Higgins, 10 Mo. 728; Callahan v. Cafferata, 39 Mo. 136. The third is sustained by the authorities already cited on that subject. The fourth by the following authorities, as well as common sense: Hill v. Palm, 38 Mo. 13; Alexander v. Harrison, 38 Mo. 258; Sharpe v. Johnstone, 50 Mo. 83; Ibid, 59 Mo. 557. The fifth is covered by the first instruction. The sixth is supported by Sharpe v. Johnstone, 59 Mo. 557. The seventh is only as to the form of the verdict and is entirely unobjectionable, as it tells the jury to make a finding on each count.

IV. In regard to defendant's instructions refused those numbered twelve and sixteen are wholly on counts other than the first and have nothing to do with the case at bar. That numbered eleven is based upon a state of facts unparalleled in legal history and the annals of jurisprudence. There is no authority to support it and none to condemn it. The others were all properly refused.

V. Defendant has no cause to complain of the verdict. The trial was fair and impartial.

ELLISON, J.

This action is for malicious prosecution, the petition containing four counts.

The first was based on the arrest and imprisonment of plaintiff on defendant's affidavit charging him with having stolen two fat hogs.

The second was for the arrest and imprisonment of plaintiff on the charge of conspiring to murder defendant.

The third was for the arrest and imprisonment of plaintiff on the charge of being about to “commit murder against the person of” defendant.

The fourth was for procuring an indictment against plaintiff and causing his arrest and imprisonment on the charge of conspiring to murder defendant and with inciting and persuading others to murder him.

At the beginning of the trial the defendant objected to any testimony under either count in the petition for the reason that neither of them stated facts sufficient to constitute a cause of action.

The objection was sustained as to the first and fourth counts and overruled as to the second and third. The bill of exceptions then recite; that, “plaintiff in support of said second and third counts introduced the following evidence, to-wit:” At the close of the evidence for plaintiff, the court against defendant's objection and exception, permitted plaintiff to amend the first count in his petition, by inserting, by interlineation, the words “without probable cause.”

There was a verdict for plaintiff on the first count for five hundred dollars, and for defendant on each of the other counts.

Defendant appeals.

The court erred in permitting the amendment at the close of the plaintiff's case. At the opening of the trial it sustained the objection to any testimony under the first and fourth counts. The evidence on part of plaintiff was then proceeded with under this ruling, and defendant had a right to develop his defence and cross-examine the plaintiff's witnesses with reference to the case as it remained or existed after the court had excluded the two counts from consideration. If defendant had known the first count was to be brought back into the case he might have adopted a different...