Vansickle v. Brown

• Decision Date: 31 October 1878
• Citation: 68 Mo. 627
• Parties: VANSICKLE et al., Appellants, v. BROWN.
• Court: Missouri Supreme Court

68 Mo. 627

VANSICKLE et al., Appellants,

v.BROWN.

Supreme Court of Missouri.

October Term, 1878.

[COPYRIGHT MATERIAL OMITTED]

Appeal from Knox Circuit Court.

Hollister & Hollister for appellants.

1. Plaintiffs' eighth instruction ought to have been given. Hickman v. Griffin, 6 Mo. 37.

2. Defendant's first instruction is not the law. It requires the plaintiff to prove that the charge was willfully made by the defendant, and also that the charge was false, and in addition to all that, plaintiff must prove that the defendant was instigated by malice toward the plaintiff in making the charge, and in addition to that, that the charge was made without any reasonable or probable cause, and unless all of these facts be proved to exist to the satisfaction of the jury, they are told to find for the defendant.

3. Instruction two, given on the part of the defendant, is not the law. The voluntary waiving of an examination by a party when arrested, is no evidence of his guilt, and at the very most, if any evidence whatever, it would only be a slight circumstance to show probable cause. But by that act the defendant enters no plea of guilty, acknowledges the commission of no crime, but simply enters into a bond for his appearance to answer the charge.

4. Defendant's third instruction is based upon the evidence as to what the county court verbally told defendant in regard to this road. It tells the jury, in substance, that if the county court, while in session, told the defendant that the road in question was a legal road, then the defendant had a right to open it, and the plaintiff had no right to close it up. We apprehend that if the county court had even made an order and entered it of record, declaring said road legally established, yet if the petition for said road was not signed by twelve householders of the township in which said road was to be located, and three of them of the immediate neighborhood, the county court would have no jurisdiction even to locate said road or establish the same, and this petition did not comply with the law in that respect. 54 Mo. 234. The verbal orders and directions given by the county court as to defendant's duty in opening said road, were not admissible, as the action of the court is only known by its records.

5. The complaint of William Vansickle against Hugh Brown, the record, judgment and verdict of the jury, tended to prove knowledge on the part of the defendant of the illegality of said road. At the same term of court when defendant procured the indictment to be found against the plaintiff for obstructing a public highway, the defendant was tried and convicted for trespass in opening the same road under the same order, and the court, we think, should have admitted the evidence for the reasons stated in the bill of exceptions.

6. The question asked the defendant by his attorneys, viz: “Did you act in good faith towards the plaintiff in making the affidavit for her arrest?” was asking the witness to state a conclusion of fact, and should not have been permitted. That was a question for the jury to determine. That was the main fact in issue which the jury were to determine from all the circumstances in the evidence.

Wilson & Cover with W. R. McQuoid for respondent.

1. Plaintiff's eighth instruction was properly refused. Bigelow's Lead. Cases on Torts, 198; Munns v. Dupont, 3 Wash. C. C. 31; 2 Greenl. Ev., § 454; Merkle v. Otteusmeyer, 50 Mo. 49; Hill v. Palm, 38 Mo. 13.

2. The plaintiff was bound to show by the evidence the prosecution against her was instigated by malice and without probable cause. She was required before she

could recover to establish by competent evidence, the concurrence of both malice and the want of probable cause. Defendant's first instruction was, therefore, properly given. Greenl. Ev., § 453; Casperson v. Sproule, 39 Mo. 39; Frissell v. Relfe, 9 Mo. 859; Merkle v. Otteusmeyer, 50 Mo. 49; Sharpe v. Johnston, 59 Mo. 557; Sappington v. Watson, 50 Mo. 83.

3. The waiver of an examination and voluntary entering into a recognizance to appear and answer the charge in the circuit court was certainly evidence of probable cause. See Sappington v. Watson, 50 Mo. 83; State v. Railey, 35 Mo. 168.

4. The third instruction given for the defendant was predicated on the evidence admitted to rebut malice and to show the good faith of the defendant in opening the road and in prosecuting plaintiff for its obstruction. The evidence conclusively shows that Brown, as road overseer of his district, was honestly inquiring as to the legal existence of the road, and knowing the county court had exclusive jurisdiction of roads, he very reasonably applied to it for the desired information. The court informed him that the road was lawfully established, that the order he then had was sufficient authority to open the road, and directed him to proceed and open it. For these purposes the evidence was proper, and it is immaterial whether the directions of the court were verbal or of record, and if the evidence was admissible the instruction was proper. If there was no malice the plaintiffs had no cause of action.

5. The evidence offered by appellant to show bad treatment by the officer in making the arrest, was not admissible. The State was the plaintiff, and the officer in the execution of the warrant, was in no sense the agent of the respondent. If he was guilty of cruelty he was answerable for his bad conduct. This is not an action in trespass.

6. The proceedings in the case of William Vansickle v. Brown, were not admissible. The action was commenced after the arrest of the plaintiff, and, therefore, could not be evidence of bad faith, malice or want of probable cause in commencing the prosecution.

HOUGH, J.

At the instance of the defendant, the plaintiff, Susan Ann Vansickle, was arrested for obstructing a public highway in a certain road district, in Knox county, of which defendant was overseer. The plaintiff waived an examination before the justice who issued the warrant for her arrest, and voluntarily entered into a recognizance for her appearance before the circuit court, and was afterwards indicted by the grand jury for the offense for which she had been arrested. A nolle prosequi was subsequently entered by the prosecuting attorney, and thereupon the plaintiff instituted the present action against the defendant for malicious prosecution.

1. MALICIOUS PROSECUTION: evidence: conduct of arresting officer.

At the trial the plaintiff offered to prove that the officer conducted himself in an uncivil and insulting manner towards her when he arrested her. This testimony was excluded by the court, and properly so. For any abuse of his official authority the officer himself should be held liable. It is not intimated that the defendant was in any way connected with or responsible therefor, and the fact sought to be shown was, therefore, wholly outside the issues to be tried. If the plaintiff had offered to prove that the misconduct of the officer was instigated by the defendant, the testimony might have been admissible to show malice.

2. _____: _____: res judicata.

The record in the trespass suit between William Vansickle and the defendant, wherein judgment was rendered against the defendant for tearing down plaintiff's fence and cutting down his trees and destroying his corn, was properly excluded. That action was begun after the arrest of the plaintiff, and the judgment therein rendered after the finding of the indictment, and it does not appear from the record that the existence of the road in controversy was involved in that suit, nor was any evidence aliunde offered to show that it was. Besides, the question of probable cause is to be determined by the circumstances existing when the prosecution was instituted. Bigelow's Lead. Cases on Torts, 198.

3. _____: _____: order for opening highway.

The court also excluded certain proceedings of the county court had in 1871, in relation to the opening of a new road through the premises of the plaintiff, Wm. Vansickle. We express no opinion as to the validity of those proceedings. It is a sufficient reason for excluding them that they did not vacate any old road. An express order of the court was necessary for that purpose. Phelps v. P. R. R. Co., 51 Mo. 477; Acts 1868, p. 158, § 58.

4. _____: _____: verbal orders of county county

The proceedings were, therefore, irrelevant. The road charged to have been obstructed, appears to have been established by the county court in 1868. It appeared in evidence that before opening the road the defendant procured from Joel Sever, who was road overseer in 1868, the order which the county court gave to him to open said road, and then went to the county court while in session, in the year 1872, for advice and an order to open said road, and they told him that he had as good an order as they could give him; that the road had been legally established, and to go on and open it under the order he then had. The foregoing verbal declarations of the county court to the defendant were admitted against the objections of the plaintiff. We think they were admissible in evidence to show the good faith of the defendant, and that he acted without malice. Such statements would not, of course, be admissible to establish the acts or orders of the court, for the purpose of giving validity to acts done thereunder, for it has been repeatedly held that the proceedings of county courts can only be shown by their records. But the defendant's application to the court for directions in the premises evinced a purpose to ascertain his duty and to faithfully discharge it, and the directions received by him, though verbal, were admissible to explain the motives which actuated him in opening the road and in prosecuting the plaintiff for obstructing it.

5. ______: evidence of good faith.

The defendant, while on the stand, testified that he acted in good faith, and had no ill-feelings against the plaintiff. This was objected to as...