Smith v. Burrus

• Decision Date: 29 June 1891
• Citation: 16 S.W. 881,106 Mo. 94
• Parties: Smith, Appellant, v. Burrus. [*]
• Court: Missouri Supreme Court

16 S.W. 881

106 Mo. 94

Smith, Appellant, v. Burrus. ^[*]

Supreme Court of Missouri, First Division

June 29, 1891

Appeal from the Marion Circuit Court. -- Hon. Thos. H. Bacon, Judge.

Reversed and remanded.

Harrison & Mahan and S.W. Birch for appellant.

(1) Defendant's amended answer is insufficient, and the court erred in admitting any evidence in behalf of defendant. It does not contain a defense, besides it conjoins a demurrer with an answer. Plaintiff's motion to strike out should have been sustained. Long v. Lowe, 41 Mo. 398; Darreth v. Donnelly, 38 Mo. 492; Smith v Culligan, 74 Mo. 387. (2) Instruction, numbered 1, asked by plaintiff, should have been given. Defendant's answer admits that he voluntarily dismissed the suit for slander against plaintiff Smith. The voluntary discontinuance of his suit against plaintiff Smith is prima facie evidence of the malice of defendant Burrus. Burnhans v. Sanford, 19 Wend. 417, and cases cited; Garrison v. Pearce, 3 E. D. Smith, 255. (3) The court committed error in refusing to give instruction, numbered 4, asked by plaintiff; that instruction correctly presented the law on the point involved. Cooley on Torts, p. 217; Townsend on Slander [3 Ed.] secs. 241, 247, p. 473; Com. v. Claps, 4 Mass 169; Com. v. Odell, 3 Pitts (Pa.) 449; Odgers on Slander & Libel, sec. 236; State v. Balch, 31 Kan 465; Kimball v. Fernanda, 41 Wis. 329; Marks v. Baker, 28 Minn. 162; Barr v. Moore, 87 Penn. St. 331; Hunt v. Bennet, 19 N.Y. 173. (4) The language or communication used by plaintiff Smith is privileged. "It was upon a proper occasion, from a proper motive, and made in good faith upon reasonable and probable cause." Briggs v. Garrett, 25 Am. Law Reg. (N. S.) 493 and note; Printing Co. v. Copeland, 24 Am. Law Reg. (N. S.) 640, and note; Mott v. Dawson, 46 Ia. 533; Crane v. Waters, 10 F. 619; Newell on Defamation, Slander & Libel, sec. 138, p. 535. (5) Smith's communication was only to the voters, and only for the purpose of giving, in good faith, what plaintiff believed to be truthful information, and only for the purpose of enabling such voters to cast ballots more intelligently. It clearly is a privileged communication. State v. Balch, 31 Kan. 465; Sweeny v. Baker, 13 W.Va. 160; White v. Nichols, 3 How. 266; Brown v. Hathaway, 95 Mass. 239; Klinck v. Colby, 46 N.Y. 427; Note to Munster v. Lamb, 23 Am. Law Reg. (N. S.) 22; Palmer v. Concord, 48 N.H. 211; Mott v. Dawson, 46 Iowa 533; Bays v. Hunt, 60 Iowa 251. (6) The court erred in giving instructions, numbered 4 and 5, asked by defendant. They require the jury to find "beyond a reasonable doubt," and that the "same evidence must be adduced by plaintiff as would be necessary to convict the defendant upon an indictment for horse stealing." This issue should be decided as in other civil cases, according to a preponderance of the evidence, and the reasonable probability of its truth. Marshall v. Ins. Co., 43 Mo. 586; Rothschilds v. Ins. Co., 62 Mo. 356; Edwards v. Knapp Co., 97 Mo. 432.

R. C. Cramer, J. D. Moore and McKee & Jayne for respondent.

(1) Instructions 4 and 5 given for respondent were proper. The requirement that plaintiff should sustain his slanderous charges by a preponderance of evidence was not error. Polston v. See, 54 Mo. 291; Elder v. Oliver, 30 Mo.App. 575. (2) It has been frequently ruled in this court that in civil cases proof beyond a reasonable doubt is required to warrant a recovery. Johnson v. Quarles, 46 Mo. 423; Ells v. Railroad, 51 Mo. 200; Forrester v. Scoville, 51 Mo. 268; Ringo v. Richardson, 53 Mo. 385; Kennedy v. Kennedy, 57 Mo. 73; Darrier v. Darrier, 58 Mo. 222; Gillispie v. Stone, 70 Mo. 505; Green v. Cates, 73 Mo. 115; Forrester v. Moore, 77 Mo. 651; Shaw v. Shaw, 86 Mo. 594; Rogers v. Rogers, 87 Mo. 257; Bobb v. Bobb, 89 Mo. 412; Philpot v. Penn, 91 Mo. 39; Burdett v. May, 100 Mo. 13.

Sherwood, P. J. Barclay, J., absent.

OPINION

Sherwood, P. J.

Action for malicious prosecution. Burrus brought suit against Smith for slander, alleging that the latter had charged him with stealing horses; but, after Smith had been thus put to the trouble and expense of employing counsel to defend the suit, Burrus, as he admitted in his answer, voluntarily dismissed the suit he had brought, and, when on the witness stand, testified: "I dismissed the suit voluntarily, because I wanted to."

It appeared in evidence on the trial that, at the time the charges were made by Smith, Burrus was running for justice of the county court in the eastern district of Scotland county; and the charges were made by Smith, who himself lived in that district, to other voters, and that affidavits were read by others implicating Burrus as an accomplice with one Mayfield in larcenous operations in regard to horses. Mayfield shortly before the election came off was convicted and sentenced for five years to the penitentiary. There was testimony adduced at the trial, which certainly had a strong tendency to show that the charges made by Smith were not unfounded, and there was some testimony of a contrary effect.

The instructions so far as necessary will be quoted and noticed in the opinion. The jury found for the defendant; hence this appeal.

I. At the outset of the examination of the case at bar we are met by the preliminary question whether the facts stated in the petition constitute a cause of action.

This point under our civil code of procedure is always open to examination even in an appellate court, and, like the jurisdiction of the court over the subject matter of the action, is never waived, and may be taken advantage of for the first time on appeal. R. S., sec. 2047; Sweet v. Maupin, 65 Mo. 65; McIntire v. McIntire, 80 Mo. 470; Walker v. Bradbury, 57 Mo. 66.

The authorities are in conflict as to whether a petition states a cause of action which merely alleges that a civil action brought and prosecuted maliciously, and without probable cause, has been terminated in favor of the defendant, many of the authorities maintaining that no cause of action exists unless such civil process be accompanied by arrest of the person or seizure of the property; and that the plaintiff in such original action in contemplation of law is sufficiently punished by the payment of costs. This view has received the sanction of Judge Cooley. Law of Torts [2 Ed.] 217, et seq., and cases cited.

But there are numerous and able decisions in opposition to this view, and it is difficult to combat the force of the reasoning they employ. It is difficult to see why the right of a plaintiff who as defendant has been sued in a civil action maliciously and without probable cause, and who has been put to great expense in consequence thereof, should be altered or at all affected merely by the incident of his property having been attached or his person seized; for in either case the damage, the expense and costs of defending a suit whether instituted by ca. sa. or attachment or by civil summons would be the same. And it is clear that the recovery of costs would not, under our practice, reimburse him for his attorney's fees, something which and other incidental expenses, he does recover under the English practice.

The cases on both sides of this subject have been extensively collated and exhaustively reviewed by Jno. D. Lawson in 21 Am. Law Reg. (N.S.) 281, 353, and the conclusion reached that the better doctrine is that which allows an action to be maintained as well where property, etc., has not been seized as where it has. The authorities also are well reviewed in 14 Am. & Eng. Encyclopedia of Law, Tit. Malicious Pros., p. 32, et seq., and notes. Besides, this court in Brady v. Ervin, 48 Mo. 533, adopted the view that an action for malicious prosecution may be maintained where the original action was begun by civil summons alone.

II. Of its own motion the court gave instruction, numbered 1: "The court on plaintiff's behalf, of its own motion, instructs the jury that if they find from the evidence that, in the defendant's suit against the plaintiff, this defendant's charge of slander was false, and that said suit was instituted with malice, and that said suit was also instituted without probable cause, and that this plaintiff was damaged thereby, the jury will find for the plaintiff in an amount not exceeding the amount claimed in this plaintiff's petition. If the jury find that this defendant's charge of slander was false, then the proof of want of probable cause being the proof of a negative may be made out by slight evidence, but malice is not to be necessarily inferred from the want of probable cause. Malice is the intentional doing of a wrongful act without just cause or excuse [and the jury are instructed that, under the pleadings in this case, it is admitted that defendant Burrus voluntarily instituted and voluntarily dismissed said slander suit of Burrus v. Smith, and the court further instructs the jury that such voluntary dismissal of said slander suit is in this cause prima facie evidence of malice on the part of defendant Burrus]."

Attention will now be directed to that portion of that instruction which is inclosed in brackets.

Instruction numbered 1, asked by the plaintiff, but refused him, is to the same effect, and as to that portion of the instruction of course the plaintiff would have no right to complain. We do not regard either instruction as asserting the law on this point. In the Law of Torts [2 Ed]. p. 214-15, it is said by Judge Cooley: "The burden of proving that the prosecution was malicious is also upon the plaintiff. If a want of probable cause is shown, malice may be inferred; but the deduction is not a necessary one, and the mere discontinuance of a criminal prosecution, or the acquittal of the accused, will establish for the purposes...