Walker v. Smay

• Decision Date: 12 March 1921
• Docket Number: 22,717
• Citation: 196 P. 231,108 Kan. 496
• Parties: GARDNER P. WALKER, Appellant, v. E. W. SMAY, Appellee
• Court: Kansas Supreme Court

196 P. 231

108 Kan. 496

GARDNER P. WALKER, Appellant, v. E. W. SMAY, Appellee

No. 22,717

Supreme Court of Kansas

March 12, 1921

Decided January, 1921.

Appeal from Franklin district court; CHARLES A. SMART, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. MALICIOUS PROSECUTION--Both Malice and Want of Probable Cause Must Be Proven. To recover damages for the malicious prosecution of a civil suit plaintiff must allege and prove not only that the defendant was actuated by malice in commencing the prosecution but also that it was instituted without probable cause.

2. SAME--Malicious Prosecution--Malice a Question of Fact for Jury--When Want of Probable Cause is Question of Law for Court--Evidence. The existence of malice is ordinarily a question of fact for the jury, but where there is no dispute in the testimony, the presence or absence of probable cause is a question of law for the court, and it is held that the testimony of plaintiff in the instant case failed to show that the prosecution was instituted with malice or without probable cause.

F. A Waddle, of Ottawa, for the appellant.

Walter Pleasant, and F. M. Harris, both of Ottawa, for the appellee.

OPINION

JOHNSTON, C. J.:

This was an action to recover damages for the malicious prosecution of a civil suit. A demurrer to the plaintiff's evidence was sustained and judgment given for defendant, from which plaintiff appeals.

In the original action E. W. Smay alleged that Gardner P. Walker and three others cut down trees growing upon Smay's land and converted the timber taken therefrom to their own use, and he asked for treble damages because of the trespass. The trial of that case resulted in a judgment for Walker. Soon afterwards, Walker commenced the present action charging that the former action had been brought maliciously and without probable cause, and further that in connection with the suit Smay had caused a groundless garnishment process to issue. When plaintiff had offered his evidence in this case a demurrer thereto was sustained, and the contention here is that the court erred in taking the case from the jury. Damages may be recovered for the malicious prosecution of a civil suit. (Marbourg v. Smith, 11 Kan. 554, Investment Co. v. Burdick, 67 Kan. 329 337, 72 P. 781.) Before the plaintiff could recover for the malicious prosecution of the action it would be necessary for him to allege and prove the elements necessary to maintain an action for malicious prosecution of a criminal case, and therefore it devolved on him to show that the prosecution was malicious, that it was instituted without probable cause, that it had terminated in his favor, and that he had sustained damages. It is not enough to show malice alone, nor the absence of probable cause alone. Both must concur, and unless both are shown the plaintiff must fail. (Malone v. Murphy, 2 Kan. 250.) Malice it is true is a question of fact for the jury, but it must be established by evidence. There was no evidence except that produced by the plaintiff, and in it there was no affirmative proof of an improper motive or of malice in bringing the prosecution. It is said that malice may be inferred from...