Struby-Estabrook Mercantile Co. v. Kyes

• Decision Date: 08 January 1897
• Parties: STRUBY-ESTABROOK MERCANTILE CO. v. KYES.
• Court: Colorado Court of Appeals

48 P. 663

9 Colo.App. 190

STRUBY-ESTABROOK MERCANTILE CO. v. KYES.

Court of Appeals of Colorado

January 8, 1897

Appeal from district court, Arapahoe county.

Action by Chitty C. Kyes against the Struby-Estabrook Mercantile Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Henry C. Van Schaack, for appellant.

Laws &amp Prescott, for appellee.

THOMSON J.

Action for malicious prosecution. The plaintiff had judgment, and the defendant appealed. The complaint was that on the 7th day of April, 1893, the defendant falsely maliciously, unlawfully, wrongfully, and without reasonable or probable cause, commenced a criminal prosecution against the plaintiff, before a justice of the peace, charging him with having committed the offense of procuring the R.G. Dun &amp Co. Mercantile Agency to falsely report to the defendant that the plaintiff owned certain land at Sterling, Colo., and thereby falsely getting into his possession goods and chattels of the defendant of the value of $379. It was further alleged that, by means of the charge so made, the defendant procured the arrest and imprisonment of the plaintiff, and that, upon a hearing before the justice, he was discharged, and the prosecution against him was ended. The assignments of error bring in question the sufficiency of the complaint, one of the instructions to the jury, the consistency of the verdict with the instructions, and the sufficiency of the evidence to support the verdict.

The objection urged to the complaint is that it states no facts from which want of probable cause can be deduced; that the allegation that the arrest and imprisonment of the plaintiff were procured without reasonable or probable cause is not the statement of a fact, but of a conclusion of law, and is therefore insufficient. The following is from counsel's printed argument: "We contend, therefore, that, to make a complaint for malicious prosecution good, it must state facts or circumstances which tend to show that the facts and circumstances known to the prosecutor, whether known to him by personal observation or by a statement of a reliable third party, were not such as would lead a person of ordinary caution and prudence to believe that the plaintiff, Kyes, had probably committed the crime with which he was charged." We apprehend that a pleader might experience some difficulty in drawing a complaint for malicious prosecution upon counsel's theory of what it should contain. He must be advised of the "facts and circumstances known to the prosecutor," and which influenced him in bringing the prosecution, before he can meet them by counter facts or circumstances. Those facts and circumstances might be within the exclusive knowledge of the prosecutor, and he might refuse to divulge them; so that, for want of the necessary information, the injured party would be unable to take the first step towards obtaining redress. The difficulty becomes quite apparent when we consider that the probable cause, sufficient to exonerate the prosecutor from liability, "does not depend upon the actual state of the case in point of fact, but upon the honest and reasonable belief of the party commencing the prosecution." Newell, Mal.Pros. 252, 267, 268; Glasgow v. Owen, 69 Tex. 167, 6 S.W. 527; Cooley, Torts, 181, 182. The question of probable cause is a mixed question of law and fact. What the facts may be must be found by the jury; but the court must say whether they constitute probable cause or not. Probable cause, or the want of it, is a conclusion of law; but it is also an ultimate fact. It is ultimate, and not evidential, facts that should be pleaded. The former are conclusions from the latter, and in many cases, if not to some extent in every case, necessarily involve conclusions of law. It is never proper to plead mere legal conclusions, but a distinction is to be taken between them and issuable facts in which they may be embodied. See Bliss, Code Pl. (3d Ed.) § 206 et seq.

Some other exceptions are taken to the complaint, which we shall not notice specifically. It alleges the institution of a criminal prosecution against the plaintiff by the defendant; that it was malicious; that it was without probable cause; and that it was finally determined in plaintiff's favor. No other allegations are necessary, and the complaint is proof against the objection which the defendant makes. Newell, Mal.Pros. 397; Cooley, Torts, 180, 181.

One of the defenses was that, in instituting the prosecution, the defendant acted upon the advice of the district attorney; and the court instructed the jury that if they should find that the defendant did not furnish to the district attorney a full, fair, and honest statement of all the material facts and circumstances bearing on the supposed guilt of the plaintiff, of which the defendant was possessed then the defendant was not entitled to act upon the district attorney's advice. The objection taken to this instruction is that it was unwarranted by the evidence, because it appeared without contradiction that the disclosures were full and fair, and embraced all the defendant knew. This statement of what the evidence was is hardly borne out by the record. There was evidence tending to show that material facts within the defendant's knowledge were not communicated. Before the arrest, there was an interview at the store of Williams & Wood between the plaintiff and certain of his creditors. Mr. C. Walker was the cashier of the defendant, and its agent in the prosecution. It was he who, in behalf of the defendant, consulted the district attorney. Mr. Kyes testified that Walker was present at that interview, and that during the conversation which took place, in which all participated, one of the spokesmen of the creditors said to the plaintiff, "We have been investigating your character, and find it first class; you cannot afford to have it smirched for $2,000,"--to which plaintiff replied, "No man can smirch it honestly." The plaintiff testified to other things occurring at that interview, which, if true, would have a material bearing on the question of probable cause; but what we have referred to is sufficient for our purpose. Mr. Walker, in his testimony concerning his submission of the facts to the district attorney, did not mention that interview, nor anything that occurred there. If the plaintiff's character was good, and was known to the defendant to be good, the fact should have been communicated to the district attorney. The fact, if it was a fact, of the good character of the plaintiff, coupled with the defendant's knowledge of the fact, if it had such knowledge, would cut an important figure in the consideration of the question of probable cause; and it should have been communicated to the district attorney, together with the other facts, to...