Wilkerson v. McGhee

• Decision Date: 06 February 1911
• Citation: 153 Mo. App. 343,134 S.W. 595
• Parties: WILKERSON v. McGHEE.
• Court: Missouri Court of Appeals

134 S.W. 595

153 Mo. A. 343

WILKERSON v. McGHEE.

Springfield Court of Appeals. Missouri.

February 6, 1911.

1. APPEARANCE (§ 18) — GENERAL APPEARANCE—SUPREME COURT—JURISDICTION ACQUIRED.

Where a defendant appeared generally in the Supreme Court, the question of jurisdiction to determine a cause which defendant claimed should be heard by the St. Louis Court of Appeals is thereby waived.

2. MALICIOUS PROSECUTION (§ 49)—NECESSARY ALLEGATION—PROBABLE CAUSE.

In an action for malicious prosecution, a general averment of want of probable cause is sufficient, and it is not necessary to allege facts tending to the proof thereof.

3. MALICIOUS PROSECUTION (§ 49) — PROBABLE CAUSE—NECESSARY ALLEGATIONS.

In an action for malicious prosecution, where the defendant maliciously and without probable cause appeared before the grand jury and charged plaintiff with a crime, and caused witnesses to be subpœnaed and an indictment to be returned, it was not necessary for plaintiff to allege that witnesses before the grand jury testified falsely.

4. MALICIOUS PROSECUTION (§ 20)—"PROBABLE CAUSE"—BELIEF OF GUILT.

"Probable cause" which will relieve a prosecutor from liability is a belief by him in the guilt of the accused, based on circumstances sufficiently strong to induce such belief in the mind of a reasonable and cautious man.

5. MALICIOUS PROSECUTION (§ 24) — PROBABLE CAUSE.

Though a finding by a grand jury in an indictment is prima facie evidence of probable cause, a defendant in an action for malicious prosecution may still be liable though the indictment is quashed without a trial on the merits.

6. MALICIOUS PROSECUTION (§ 24) — PROBABLE CAUSE.

Where a defendant in malicious prosecution maliciously appeared before the grand jury and charged plaintiff with a misdemeanor when he knew there was no probable cause for such charge, that the grand jury returned an indictment without witnesses testifying falsely to procure the same does not relieve the defendant of responsibility.

Appeal from Cape Girardeau Court of Common Pleas; Robert G. Ranney, Judge.

Action by Mary E. Wilkerson against Andrew J. McGhee. From a judgment sustaining a demurrer to the petition, plaintiff appeals. Reversed and remanded.

Oliver & Oliver, for appellant. T. D. Hines, for respondent.

GRAY, J.

This is an action for malicious prosecution. The court sustained a demurrer to the petition, and the plaintiff appealed.

The cause is in this court on a transfer from the St. Louis Court of Appeals. The defendant insists that the cause be transferred to the St. Louis Court of Appeals, for the reason that this court is without jurisdiction, and the St. Louis Court of Appeals was without authority to transfer the cause here. In answering this contention, it is sufficient to say that the defendant appeared generally, in this court, and the question of jurisdiction was thereby waived.

The petition alleged in general words that the defendant, in the prosecution of plaintiff, acted maliciously and without probable cause. The defendant insists the petition does not state a cause of action, because it does not state the facts which show or tend to show the want of probable cause, and that the general statement that the prosecution was without probable cause is only a conclusion of law. A general averment of want of probable cause is ordinarily sufficient, and it is not necessary to allege the facts which prove or tend to prove the averment. Enc. Pleading and Practice, vol. 13, p. 439; Hilbrant v. Donaldson, 69 Mo. App. 92; Eagleton v. Kabrich et al., 66 Mo. App. 231; Benson v. Bacon, 99 Ind. 156; Sutor v. Wood, 76 Tex. 403, 13 S. W. 321; O'Neill v. Johnson, 53 Minn. 439, 55 N. W. 601, 39 Am. St. Rep. 615; Stainer v. San Luis Valley Land & Mining Co., 166 Fed. 220, 92 C. C. A. 128.

In Hilbrant v. Donaldson, the court said: "The first error complained of in this court is that the petition does not state a cause of action. This point is not well taken. The petition alleges that the prosecution was malicious and without probable cause, and that it was ended. This constitutes a sufficient statement of a cause of action."

In Stainer v. San Luis Valley & Mining Co., supra, the federal court said: "It seems to us that an allegation of want of probable cause is an allegation of an ultimate fact, a condensed expression which by practice and established usage, is made to signify that defendant did not have reasonable ground to believe that plaintiff was guilty. Accordingly, we conclude that a complaint which, by clear averment, charges that defendant maliciously, and without any probable...