Stubbs v. Mulholland

• Decision Date: 28 March 1902
• Citation: 67 S.W. 650,168 Mo. 47
• Parties: STUBBS, Appellant, v. MULHOLLAND et al
• Court: Missouri Supreme Court

67 S.W. 650

168 Mo. 47

STUBBS, Appellant, v. MULHOLLAND et al

Supreme Court of Missouri, Second Division

March 28, 1902

Appeal from Clay Circuit Court. -- Hon. E. J. Broaddus, Judge.

Reversed and remanded.

Botsford Deatherage & Young for appellant.

(1) The fact that justice Case discharged the plaintiff on the charge of forgery after hearing the evidence proves the want of probable cause for the prosecution. Brant v Higgins, 10 Mo. 734; Casperon v. Sproule, 39 Mo. 40; Fugate v. Miller, 109 Mo. 285; Ray v Goings, 112 Ill. 656. The duty of a justice of the peace under the statute is to commit where there is probable cause to believe the accused guilty and to discharge where there is a want of probable cause. R. S. 1899, sec. 2456. (2) By probable cause is meant a reasonable ground for suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the accused is guilty of the offense with which he is charged. It must be something more than bare suspicion or surmise. McGarry v. Railroad, 36 Mo.App. 347; Sharpe v. Johnston, 76 Mo. 660; s. c., 59 Mo. 557. In this case there was not even any ground for suspicion of plaintiff. Much less were there any circumstances warranting a belief of his guilt, or anywise tending to prove the same. Spaulding v. Same, 56 Mich. 366; Ramsey v. Arnott, 64 Tex. 320; Smith v. Edge, 52 Pa. St. 419; Hamilton v. Smith, 39 Mich. 227; 14 Am. and Eng. Ency. Law, 26, note 3. (3) The defendants must be held to have known at the time they instituted the causeless prosecution against plaintiff every fact they could have ascertained by proper diligence bearing on the question of his guilt. Pipkin v. Haucke, 15 Mo.App. 373; Hill v. Palm, 38 Mo. 13; Sappington v. Watson, 50 Mo. 83; Sharpe v. Johnston, supra. Any fact that defendants might have thus ascertained is the same as if they had actually known it. (4) The fact that plaintiff was a man of good reputation for honesty, integrity and industry, both in Scott county, Missouri, where he lived most of his life, and also at Springdale, Arkansas, where he lived about a year, which fact was sworn to by several witnesses, and denied by none, was properly proven in evidence by plaintiff to show the want of probable cause. Woodworth v. Mills, 61 Wis. 57; Ross v. Ennis, 35 Ill. 487; McIntire v. Levering, 148 Mass. 546; Peck v. Chouteau, 91 Mo. 138; Gregory v. Chambers, 78 Mo. 294; 14 Am. and Eng. Ency. Law, 59. Evidence of good character is a fact admissible in every criminal case to prove innocence. Especially so in cases of doubt and uncertainty. Defendants either knew, or by the exercise of proper diligence could have known, of plaintiff's good character and that he was, therefore, probably not the guilty party. (5) The fact that plaintiff and W. G. Thompson, whose name as payee was forged on the back of the check in question, were partners in business in itself was sufficient to deter defendants, if they had been men of ordinary prudence and regard for the rights of others, from causing plaintiff's arrest. Partners in business do not ordinarily forge one another's paper. Defendants either knew, or by the exercise of proper diligence could have known, of the fact of such partnership. The fact of such partnership relation between plaintiff and W. G. Thompson was in itself of great weight to establish want of probable cause. (6) The prosecution of plaintiff was not only without probable cause, but was also malicious. Malice in its legal sense does not denote anger or ill-will, but a wrongful act done intentionally. 2 Greenleaf's Evidence, sec. 453; Com. v. Snelling, 15 Pick. 327. Malice often consists of a reckless disregard of the rights of others. Hamilton v. Smith, 39 Mich. 222. Malice is inferable from the fact alone of the want of probable cause. Brant v. Higgins, 10 Mo. 728; Callahan v. Caffarata, 39 Mo. 136; Sappington v. Watson, supra; Fugate v. Miller, 109 Mo. 281. (7) The issuance of the warrant, with the understanding that defendant Hughes, the employee of the principal defendants, should have and exercise the determination whether plaintiff should be arrested thereunder or not, converted Hughes into a judicial officer with the power of the magistrate who issues such writs, in violation of the law of the State (R. S. 1899, sec. 2441) and made the warrant for plaintiff's arrest a searchwarrant, not for the discovery of property, but of a human being. It was in effect the same as the issuance of a warrant in blank with the power given to one who was not a regularly constituted officer to fill in the name of the person whom he might believe to be the guilty party. The issuance of this warrant being therefore unlawful, in violation of plaintiff's rights and in disregard of the time-honored safeguards of the law which have come down from Magna Charta and the bill of rights for the protection of the citizen, was therefore conclusively malicious as a matter of law, irrespective of the intentions of the parties who caused that unlawful act. An act which is unlawful or per se wrongful of another is malicious in the eye of the law. (8) It is well settled that the defense of legal advice, even in proper cases, in order to avail must have been procured after the disclosure to the attorney fully and fairly of every fact which the party by proper diligence could have ascertained bearing on the question of guilt of the accused. Pinkin v. Haucke, 15 Mo.App. 373; Hill v. Palm, 38 Mo. 13; Sappington v. Watson, supra; McGary v. R. W. Co., 36 Mo.App. 349; Ray v. Goings, 112 Ill. 656; Murphy v. Larson, 77 Ill. 172; Williams v. Vanmeter, 8 Mo. 339. (9) The questions of intent and malice in both civil and criminal cases are for the jury and not the court. Moody v. Deutsch, 85 Mo. 237; 13 Ency. of Pl. and Pr., 473; Hamilton v. Smith, 39 Mich. 227. (10) Where the credibility of witnesses is involved, a peremptory instruction based on the oral testimony of such witnesses is erroneous. Gregory v. Chambers, 78 Mo. 298; Meyer v. Union Trust Co., 82 Mo. 240; Wolff v. Campbell, 110 Mo. 114; Church v. Railroad, 119 Mo. 203; Land Co. v. Ross, 135 Mo. 107; Seehorn v. Bank, 148 Mo. 256; Gibson v. Zimmerman, 27 Mo.App. 96.

F. M. Black, A. L. Sherman and Simrall & Trimble for respondents.

(1) Malice and want of probable cause are both essential elements in an action for malicious prosecution. As to this proposition there seems to be no difference of opinion between counsel on the one side and the other. Probable cause has been thus defined by this court: "In our opinion that reasonable and probable cause which will relieve a prosecutor from liability, is a belief by him in the guilt of the accused, based upon circumstances sufficiently strong to induce such belief in the mind of a reasonable and cautious man." Vansickle v. Brown, 68 Mo. 635; Sharpe v. Johnston, 76 Mo. 670; Cooley on Torts, p. 181. Probable cause is a mixed question of law and fact. If the facts are not in dispute the question is for the court, but upon disputed facts the jury must be left to pass. Cooley on Torts p. 181; Weaver v. Flood, 72 Mo.App. 199; Sharpe v. Johnston, 59 Mo. 576. (2) The facts which go to show want of probable cause may and sometimes do furnish evidence from which malice may be inferred, but want of probable cause is not necessarily proof of malice. Both malice and want of probable cause are inferences to be drawn from the facts. Thus it has been said by this court: "If there be reasonable or probable cause, no malice, however, distinctly proved, will make the defendant liable. The proof of malice does not establish the want of probable cause, nor does the want of probable cause necessarily establish the existence of malice. That is to say, malice is not an inference of law from the want of probable cause. Malice, however, need not be proved by direct and positive evidence, but may be inferred from the facts which go to establish the want of probable cause, and this is all that is meant when it is said that malice may be inferred from the want of probable cause." Sharpe v. Johnston, 76 Mo. 669; Burris v. North, 64 Mo. 426. (3) If the person causing the arrest does not act on his own judgment, but in good faith lays before counsel all of the facts and circumstances known to him, and then acts upon the advice of counsel thus obtained, that advice is a perfect and complete defense to an action for malicious prosecution. Sharpe v. Johnston, supra; Burris v. North, 64 Mo. 429; Cooley on Torts, p. 183.

OPINION

SHERWOOD, P. J.

Action for malicious prosecution. The defendant banking company, of which defendant John Mulholland is president, and the other defendants were employees, is a business concern, whose chief, if not exclusive business consists in buying laboring men's time; that is, by discounting their pay checks, etc. The calling seems to have been remunerative, as they employed at a salary A. L. Sherman as a lawyer to attend to their legal business and gave him deskroom in their banking office.

J. H Stubbs, the plaintiff in this action, testifying in his own behalf, in substance stated that he was thirty years of age; that he had never been in Kansas City until brought there on a warrant of arrest in April, 1897, from his residence in Scott county (Blodgett). He had formerly lived in that county; lived there somewhat over twenty years, having arrived there from Eddyville, Kentucky, when a boy nine years old. On his arrival in Scott county, he worked on a farm until October, 1888, when he was employed in the store of Marshall, McMillan & Company of Scott county in their dry goods department; that his physician, thinking he had Bright's disease, advised his removal from Scott county to Springdale, Arkansas, and recommended the water for his...