Wilcox v. Gilmore

• Decision Date: 30 July 1928
• Docket Number: No. 26812.,26812.
• Parties: B.F. WILCOX, Appellant, v. W.A. GILMORE and J.O. FERGUSON.
• Court: Missouri Supreme Court

8 S.W.2d 961

B.F. WILCOX, Appellant, v. W.A. GILMORE and J.O. FERGUSON.

No. 26812.

Supreme Court of Missouri, Division One.

July 30, 1928.

Appeal from Polk Circuit Court. — Hon. C.H. Skinker, Judge.

AFFIRMED.

W.M. Bowker, Neale & Newman and Schmook & Sturgis for appellant.

(1) An action for malicious prosecution will lie for the malicious prosecution of a civil suit, without probable cause, the same as for a criminal prosecution. 38 C.J. 417, sec. 55; Virtue v. Creamery Package Co., L.R.A. 1915B, 1179: Cooley on Torts, p. 220. (2) Malice may be inferred from want of probable cause. Stubbs v. Mulholland, 168 Mo. 47; Waddell v. Krause, 241 S.W. 964; Holliday v. Sterling, 62 Mo. 321; Moody v. Detch, 85 Mo. 243; 26 Cyc. 47. (3) Malice need not be proved by direct testimony, but may be inferred from facts that go to establish a want of probable cause. Waddell v. Krause, 241 S.W. 964. (4) It is not necessary to prove that defendants both started and aided in the prosecution of the civil suit: either one is sufficient to make them liable. Carp v. Ins. Co., 203 Mo. 295; Hilderbrand v. Donaldson, 69 Mo. App. 97. (5) Dismissal of a suit or failure to obtain judgment is prima-facie evidence of want of probable cause. Engleton v. Kaprich, 66 Mo. App. 231. (6) The defendant in an action for malicious prosecution is chargeable with having all the knowledge of the facts before the prosecution was instituted which he could have learned by due diligence. Stubbs v. Mulholland, 168 Mo. 47. (7) Where there is evidence of a want of probable cause the question of malice is for the jury. Stubbs v. Mulholland, 168 Mo. 47. (8) It is reversible error for the court to comment upon the evidence in an instruction or to single out particular portions of the testimony and make comments upon the same. Pasche v. Townsite Co., 190 S.W. 30; Richardson v. Metropolitan Railroad Co., 166 Mo. App. 162; Feil v. Bank, 269 S.W. 936; Wiegmann v. Wiegmann, 261 S.W. 758; Martin v. Travelers Ins. Co., 247 S.W. 1024; Kansas City v. Boruff, 295 Mo. 28; Curliss v. Bales, 211 Mo. App. 219; Champion Paper Co. v. Shilkee, 237 S.W. 109; Burtch v. Wabash Ry., 236 S.W. 338; Imboden v. Union Trust Co., 111 Mo. App. 220; Conner v. Ry. Co., 181 Mo. 397. (9) The records of the Supreme Court in the case of Ruby Evans v. B.F. Wilcox were admissible. Carp v. Ins. Co., 203 Mo. 295. (10) The court erred in giving a peremptory instruction to the jury to find in favor of the respondent J.O. Ferguson. Stubbs v. Mulholland, 168 Mo. 47; Carp v. Ins. Co., 203 Mo. 295. (11) In a case of malicious prosecution all who aid and abet the parties in such prosecution are liable. 26 Cyc. 68; Cooper v. Scyoc, 104 Mo. App. 414.

Hamlin, Hamlin & Hamlin and L. Cunningham for respondents.

(1) The action was based on a conspiracy and no conspiracy being shown, the demurrers at the close of plaintiff's case should have been sustained. Holborn v. Norton. 60 Mo. App. 100; Hollen v. Smith, 305 Mo. 166. (2) The party to be charged must be affirmatively shown to have been the proximate efficient cause of maliciously putting the law in motion, and plaintiff must so prove. Passive knowledge and acquiescence is not sufficient. The demurrers at the close of plaintiff's case should have been sustained. 38 C.J. 395; Hanser v. Bicber, 271 Mo. 326; Finley v. Refrigerator Co., 99 Mo. 559; Walser v. Thies, 56 Mo. 89; Christian v. Hanna, 58 Mo. App. 37; White v. Shradski, 36 Mo. App. 635. The demurrers should have been sustained at the close of plaintiff's case because it was proven that the trial of her case in the circuit court resulted in a verdict and judgment in her favor, which was conclusive evidence of probable cause for the institution of her suit, even though the case may have been reversed on appeal and the defendant discharged. Boogher v. Hough, 99 Mo. 185; Crescent City Co. v. Butcher's Union Co., 120 U.S. 151; 26 Cyc. 42, par. b. notes 10, 11 and 12; par. 4b; 38 C.J. 414, 415; McElroy v. C.P. Co., 254 Ill. 297; Topolewski v. Packing Co., 143 Wis. 64; Snider v. Montross, 158 Mich. 263; Casey v. Dorr, 94 Ark. 433; Black v. Knight, 44 Cal. App. 756; Hoddard v. Chesapeake & O. Ry., 77 W. Va. 710, 88 S.E. 1038; Fones v. Murdock, 80 Ore. 340; Wilkerson v. McGee, 265 Mo. 574; Duerr v. Bridge Co., 132 Ky. 228. The court properly directed a verdict for the defendant J.O. Ferguson. Clark v. Thompson, 160 Mo. 461; Barrett v. Chauteau, 94 Mo. 1. (3) Ruby J. Perkins detailed the facts in her case to an attorney, who also ascertained the facts from Dr. Albright, and advised her that she had a meritorious cause of action and thereupon was employed by her and filed the suit. The institution of the suit upon the advice of counsel where the facts are fully disclosed is a complete defense. Free access to courts of civil justice is provided for the administration of law and an action for malicious prosecution does not lie merely because they have been resorted to unsuccessfully. 26 Cyc. 7. note 7; 38 C.J. 385, par. 2; 428 et seq.; Ferguson v. Arrow, 142 N.Y. 580; Kolka v. Jones, 6 N.D. 461; Warren v. Flood. 72 Mo. App. 199; Sappington v. Watson, 50 Mo. 83; Stubbs v. Mulholland, 168 Mo. 47; Sparling v. Conway, 75 Mo. 510. (4) Malice and want of probable cause are essential elements in an action for malicious prosecution. Wilkerson v. McGee, 265 Mo. 574; Hanser v. Bieber, 271 Mo. 326; 38 C.J. 400 et seq. While malice may be inferred by the jury from want of probable cause, it is not an inference of law. It need not be proven by direct testimony but may be inferred from facts which prove or establish want of probable cause. The question is not required to be submitted to a jury where the facts are undisputed, and in such case the court should then declare as a matter of law whether or not want of probable cause exists. The fact that Ruby J. Perkins recovered a verdict and judgment against B.F. Wilcox in the trial of her case in the circuit court is an undisputed fact and as a matter of law establishes probable cause. Henderson v. Cape Trading Co., 289 S.W. 324.

ATWOOD, P.J.

This is an appeal from a judgment for defendants in an action for malicious prosecution growing out of a damage suit by Ruby J. Perkins against B.F. Wilcox, appellant herein, on account of the death of her husband, W.C. Perkins. Mrs. Perkins obtained a judgment below, which was reversed on appeal to this court, our opinion therein appearing in 294 Mo. 700.

The present action was commenced against W.A. Gilmore, J.O. Ferguson and other defendants. The abstract of the record filed here does not clearly indicate just who the other defendants were, but apparently Ruby J. Perkins, plaintiff in the damage suit, was not among them, and this action was finally prosecuted only against defendants Gilmore and Ferguson.

The amended petition upon which plaintiff went to trial alleges that there was no probable cause for the prosecution of the action by Mrs. Perkins and that defendants herein "wrongfully, maliciously and without probable cause agreed and conspired together ... for the purpose of procuring, inducing and persuading the said Ruby J. Perkins to bring the said action against this plaintiff, ... and that the said defendants herein conspiring together ... did procure, induce and persuade the said Ruby J. Perkins to bring said action, and did, wrongfully and without probable cause agree and conspire together ... to encourage and assist her, the said Ruby J. Perkins, to continue the prosecution of said action; and so unlawfully and maliciously agreeing and conspiring together ... did encourage and assist the said Ruby J. Perkins to bring and to continue the prosecution of said action by having and inducing the said J.M. Perkins to refuse to plead guilty to having resisted and assaulted an officer, in the difficulty which the said Ruby J. Perkins claimed in her suit was the cause of the death of her said husband, W.C. Perkins, and did aid and assist the said J.M. Perkins in his defense thereto, to the end that it might be made to appear that the said B.F. Wilcox was the aggressor and was to blame in the said difficulty; by consulting with and urging the said Ruby J. Perkins to bring and prosecute said cause; by providing and collecting the money and agreeing to stand good therefor with which to defray the expenses of prosecuting said action; by furnishing free transportation to the said Ruby J. Perkins and to her witnesses to and from Springfield for consultation with her attorneys, and by themselves accompanying the said Ruby J. Perkins on said trips, and also by furnishing free transportation to the said Ruby J. Perkins and her witnesses in going back and forth attending the trial of the case: by circulating false and malicious statements relative to the trouble and relative to the part that the plaintiff, Wilcox, has taken therein; by having the said J.M. Perkins at the same time and place file a damage suit against this plaintiff in the sum of $25,000 for the purpose of creating and working up public sentiment against the plaintiff herein, and in favor of the prosecution of said action; by helping look up witnesses and testimony for the use of the said Ruby J. Perkins, and by themselves testifying in a way and by procuring other parties to testify in a way, highly colored and distorted, misrepresenting the facts in favor of the said Ruby J. Perkins in said action and in favor of the prosecution of said suit, and by encouraging, aiding and assisting the said Ruby J. Perkins in the prosecution of said action in many other ways and by many other means." The amended petition also alleged that "at the time of filing of the said suit and during all the time of the prosecution thereof, the said defendants and each of them and said other parties well knew that there was no probable cause for said prosecution and ... except for the wrongful and malicious persuasion, inducement, encouragement and assistance of the said defendants, the said Ruby...