Webb v. Byrd
| Decision Date | 02 March 1920 |
| Citation | 219 S.W. 683,203 Mo.App. 589 |
| Parties | CHARLES WEBB, Respondent, v. WILLIAM BYRD, Appellant |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of Cape Girardeau County.--Hon. Frank Kelly, Judge.
Judgment reversed and cause remanded.
A. M Spradling for appellant.
(1) The demurrer to the evidence should have been sustained. Tiede v. Fuhr, 264 Mo. 622, 633; Berger v Langenberg, 97 Mo. 390, 395; McCaskey v Garrett, 91 Mo.App. 354, 359. (2) The court erred in modifying defendant's instruction No. 1 by striking out the following therefrom "that the charge in the affidavit was false." Hill v. Palm, 38 Mo. 13, 23; Vansickle v. Brown, 68 Mo. 627, 636. (3) The court erred in refusing defendant's instruction No. 6. Sparling v. Conway, 75 Mo. 510, 512; Sharp v. Johnson, 76 Mo. 660, 663. (4) 1. The court did not properly define malice in plaintiff's instruction No. 3, and for that reason it should have been refused. State v. Weeden, 133 Mo. 70, 83; State v. Schoenwald, 31 Mo. 147, 157. 2. Malice and want of probable cause must concur in order to maintain an action for malicious prosecution. Stubbs v. Mulholland, 168 Mo. 47, 74; Sharp v. Johnson, 76 Mo. 660, 669. 3. The court in plaintiff's instruction No. 3 authorized a recovery if defendant wrongfully caused plaintiff to be arrested and held in custody while the constable searched him, and that such was done without probable cause. This instruction eliminates malice and authorized a recovery on want of probable cause alone, and this was error. Talbot v. Plaster Co., 86 Mo.App. 558, 563; Grant v. Reinhart, 33 Mo.App. 74, 82. 4. Wrongfully and maliciously are not synonymous, and it was error to substitute wrongfully for maliciously in plaintiff's instruction No. 3. Spivey v. McGehee, 21 Ala. 417; State v. Churchill, 15 Idaho 645; Bouvier's Law Dictionary, 3501; 40 Cyc. 2874. 5. The parties to this suit had known each other for thirty-six years, and had been friends during all that time. There never had been any ill-feeling or misunderstanding between them, and there is nothing in the record in this case authorizing an instruction in which malice may be inferred, and it was error to give such an instruction. Grant v. Reinhart, 33 Mo.App. 74, 82; Talbott v. Plaster Co., 86 Mo.App. 558, 563. 6. A prosecution may be said to be malicious when actuated by hostile, angry, or vindictive motives, or is intentionally commenced or carried on with knowledge that it is without legal justification or foundation. Christian v. Hanna, 58 Mo.App. 37, 43; Callahan v. Kelso, 170 Mo.App. 338, 341. (5) Plaintiff's instruction No. 4 is erroneous. Proof of want of probable cause does not necessarily establish malice. Talbott v. Plaster Co., 86 Mo.App. 588, 564. (6) Each of plaintiff's instructions assumes that he was arrested. While the search warrant directed the constable to bring the body of plaintiff before him, such provision was not authorized by law to be inserted in the warrant, and the constable testified that he did not arrest plaintiff. Sec. 5321, R. S. 1909; Boerger v. Langenberg, 97 Mo.App. 390, 396. (7) The defendant should have been permitted to state his feeling toward plaintiff. Vansickle v. Brown, 68 Mo. 627, 634. (8) The damages assessed against defendant are excessive, and the result of passion and prejudice. Ruth v. Railroad, 98 Mo.App. 1, 19; Maguire v. Railroad, 103 Mo.App. 454, 459.
David B. Hays for respondent.
(1) The demurrer to the evidence was properly overruled. In passing upon a demurrer to the evidence, the evidence must be viewed in the light most favorable to plaintiff, giving him the benefit of any inference which may be fairly drawn therefrom. Yost v. Atlas Portland Cement Co., 191 Mo.App. 422, 432; Pfeifer v. Supreme Tribe of Ben Hur, 191 Mo.App. 38, 51; Stubbs v. Mulholland, 168 Mo. 47, 75. (2) The court did not err in modifying defendant's instruction No. 1 by striking out therefrom the following words: "that the charge in the affidavit was false." In action for malicious prosecution, the question is not whether plaintiff was guilty or innocent of the charge, but whether upon the facts the defendant had probable cause to believe him guilty. Cramer v. Harmon, 126 Mo.App. 54, 61; Lindsay v. Bates, 223 Mo. 294, 306; Moore v. Sauborin, 42 Mo. 490, 494; Stubbs v. Mulholland, 168 Mo. 47, 89. (3) The court properly refused defendant's instruction No. 6. A defendant, sued for malicious prosecution, cannot shield himself under the advice of counsel unless he communicated to the counsel all the facts bearing on the guilt or innocence of accused which he knew or by reasonable diligence could have ascertained; and if he neglected to ascertain and advise the counsel of all the facts which he could have ascertained by reasonable diligence, the advice of counsel is not a defense. Carp v. Queen Insurance Co., 203 Mo. 295, 356; March v. Vandiver, 181 Mo.App. 281, 286; Stubbs v. Mulholland, 186 Mo. 47, 76 and 84; Butcher v. Hoffman, 99 Mo.App. 239, 248; Powers v. Walker et al., 192 Mo.App. 230, 241. This instruction was unsupported by any evidence showing reasonable diligence or good faith on the part of defendant and it was also improper because it made a consultation with counsel a complete defense in itself. It withheld from the consideration of the jury the questions of malice and the probable cause, and directed the jury to find for defendant solely on the ground that he had consulted counsel. Malice and probable cause are questions for the jury. March v. Vandiver, 181 Mo.App. 281, 286; Butcher v. Hoffman, 99 Mo.App. 239, 250; Stubbs v. Mulholland, 168 Mo. 47, 89; Sharpe v. Johnson, 76 Mo. 660, 674; Hill v. Palm, 38 Mo. 13, 22. (4) While instruction No. 3 for plaintiff may not be verbally or technically faultless it is substantially correct, and furnishes no ground on which to disturb the judgment. There need not be any personal ill will or spite in the institution of a suit in order to constitute malice; but malice consists in the intention to do an act known to be wrongful, and may be inferred from the want of probable cause. Witacheck v. Glass, 46 Mo.App. 209, 214; Kenneday v. Holliday, 25 Mo.App. 503, 518. Instructions embodying the same points as instruction No. 3, set out in practically the same words, were approved in Callahan v. Caffarata, 39 Mo. 136, 142, and in Carp v. Queen Insurance Co., 203 Mo. 295, 354-5. A criminal prosecution is malicious when actuated by hostile, angry or vindictive motives, or when intentionally instituted and carried on with knowledge that it is without legal justification. Callahan v. Kelso, 170 Mo.App. 338, 341. (5) Plaintiff's instruction No. 4 was properly given. While proof of want of probable cause does not necessarily establish malice, yet from the circumstances showing want of probable cause the jury may infer malice, Stubbs v. Mulholland, 168 Mo. 47, 74; Callahan v. Caffarata, 39 Mo. 136, 142; Butcher v. Hoffman, 99 Mo.App. 239, 251; Bowers v. Walker, 192 Mo.App. 230, 238; Bosch v. Miller, 136 Mo.App. 482, 490. (6) (a) In instruction No. 1, covering the whole case generally, the fact of arrest is given among others as necessary finding on which to base a verdict. Instructions No. 2, No. 3 and No. 4, the only other instructions in which the words "arrested" or "arrest" occur, are all supplemental to No. 1, and it is not necessary that each one should alone present the entire case. (b) Moreover, the fact of arrest was an undisputed fact, and the assumption, if it had been made, would not have been error. It is not error to assume in an instruction, a fact that is undisputed or conclusively proved. Hauser v. Steigers, 137 Mo.App. 560, 569; Wise v. Wabash Railway Co., 135 Mo.App. 230, 243; Regan v. Kansas City & S. E. R. Co., 144 Mo. 623, 634; Murphy v. Southwest Mo. R. Co., 168 Mo.App. 588, 595; Gillogly v. Dunham, 187 Mo.App. 551, 559. (c) The insertion, in the search warrant, of an order to arrest the accused in case the property was found upon him was a mere irregularity, not vitally affecting the legality of the process. Boeger v. Langenberg, 97 Mo. 390, 396; Stubbs v. Mulholland, 168 Mo. 47, 88. And as was justly remarked by the court in the case last cited, page 88, "it certainly does not lie in the mouths of defendants to question that jurisdiction after they have invoked it." (7) Testimony of defendant as to his feelings toward the plaintiff was properly excluded by the court. (8) The damages assessed against defendant are not excessive. The verdict showed no evidence of prejudice, passion or corruption on the part of the jury, but on the contrary was evidently the result of an honest regard for duty and an understanding of the salient facts, and should be permitted to stand. Ruth v. St. Louis Transit Co., 98 Mo.App. 1, 19; Bowers v. Walker, 192 Mo.App. 230, 243; Carp v. Queen Insurance Co., 203 Mo. 295, 360. Appellate courts are not warranted in vacating a judgment on the ground that the verdict was excessive unless the excess is unwarranted by any reasonable interpretation of the evidence. Clark v. Knoxville Fire Insurance Co., 61 Mo.App. 181, 185.
This is an action for malicious prosecution; the prayer of the petition being for a recovery of $ 5000 as actual damages alleged to have been sustained by plaintiff. The trial, before the court and a jury, resulted in a verdict and judgment for plaintiff in the sum of $ 1350, from which the defendant appeals.
On October 13, 1915, plaintiff and defendant were both residents of Jackson, Cape Girardeau County, Missouri. On that day a "special cheap sale" was in progress at a certain dry goods store in Jackson at which both of the parties to the record were present for the purpose of making...
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