Smith v. Glynn

• Citation: 183 S.W. 681
• Decision Date: 06 March 1916
• Docket Number: No. 11878.,11878.
• Parties: SMITH v. GLYNN.
• Court: Court of Appeal of Missouri (US)

183 S.W. 681

SMITH v. GLYNN.

No. 11878.

Kansas City Court of Appeals. Missouri.

March 6, 1916.

Appeal from Circuit Court, Jackson County; W. O. Thomas, Judge.

"Not to be officially published."

Action by Stephen A. Smith against Theodore W. Glynn. From a judgment for defendant, plaintiff appeals. On reargument after remand by the Supreme Court after certification to it. Affirmed.

For the facts necessary to an understanding of the second holding in the opinion, see 144 S. W. 149.

Stubbs & Stubbs, of Kansas City, for appellant. Milton Schwind, of Kansas City, for respondent.

ELLISON, P. J.

Plaintiff's action is for malicious prosecution. The trial court peremptorily instructed the jury to return a verdict for defendant, and judgment was entered for him. Plaintiff appealed, and we affirmed the judgment. A motion for rehearing was made, but overruled, and an opinion filed on the motion. Thereupon plaintiff claimed that a constitutional question was in the case, and, on his motion, we certified the case to the Supreme Court. That court, in an opinion by Commissioner Railey, determined there was no constitutional question involved and returned it back to this court. 177 S. W. 848. The case has been again argued, and we have again examined into the merits of the appeal and are satisfied that no other disposition should be made of it than that announced in our last opinion, together with the opinion on the motion for rehearing.

We held, and do still hold, that in order for plaintiff to maintain the action the defendant must not have had probable cause for instituting the prosecution and he must have had malice. Both these elements must be established, and plaintiff failed on each.

We further held (which of itself is sufficient to dispose of the case) that the conceded facts, as set out in the foregoing opinion, showed probable cause in such way as to leave no room for two opinions in the minds of reasonable men. We think that, in the light of those facts, it would be in the face of common sense to say that defendant did not believe, and did not have reasonable ground for believing, that plaintiff was guilty; that is, that he had probable cause for the prosecution. That being true, it was the duty of the court to declare the law, by directing a verdict.

The recent case of Wilkinson v. McGee, 265 Mo. 574, 178 S. W. 471, involved the sufficiency of a petition for malicious prosecution, and, in an interesting discussion of the law on that subject, ...