Wilkerson v. McGhee

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

134 S.W. 595

153 Mo.App. 343

MARY E. WILKERSON, Appellant, v. ANDREW J. McGHEE, Respondent

Court of Appeals of Missouri, Springfield

February 6, 1911

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

Judgment reversed and cause remanded.

Oliver & Oliver for appellant.

(1) To put the criminal law in force, maliciously and without any reasonable or probable cause, is wrongful, and if thereby another is injured in property or person, there is that conjunction of injury and loss, which is the foundation of an action. Pope v. Pollock, 4 L. R. A. 25; Addison on Torts, 65; Cooley on Torts, 189. (2) The necessary allegations for, and gist of every action for malicious prosecution are the presence of malice and want of probable cause. This is so well established as to need no citations but see the late cases of Wehymeyer v. Mulvihill, 130 S.W. 681; Coleman v. Treece, 130 S.W. 56. (3) The want of probable cause is a negative averment and should be so averred. The onus rests upon the plaintiff, however, to support such allegations at the trial by affirmative proof. Wheeler v. Nesbit, 65 U.S. 544; Palmer v Richardson, 70 Ill. 544; 14 Am. and Eng. Ency. of Law, 63. (4) In pleading want of probable cause in malicious prosecution suits, it is only necessary to state that the prosecution was without reasonable or probable cause. Walser v. Thier, 56 Mo. 92; Moody v. Deutsch, 85 Mo. 242; Ross v. Hixon, 46 Kas. 550, 12 L. R. A. 760; Given v. Webb, 30 N.Y. 65; Helbert v. Donaldson, 69 Mo.App. 92; Eagleton v. Kalrich & Longley, 66 Mo.App. 231. (5) The established meaning of "probable cause" in this state is that it consists in a belief in the charge and facts alleged, based on sufficient circumstances to reasonably induce such belief in a person of ordinary prudence, in the same situation. Boerger v. Langenberg, 97 Mo. 396; Lindsay v. Bates, 223 Mo. 306, 122 S.W. 682. (6) It is generally held that a conviction in a trial court is conclusive of probable cause, but in a case such as the one at bar, where an indictment was quashed and prisoner discharged such a rule does not obtain; in such cases there is only prima facie probable cause and the same averments and proof are not required in the petition for malicious prosecution as in the former case. In the latter case the plaintiff is only required to allege and prove; first, the institution by defendant of the former suit and its termination in his (present plaintiff's) favor; second, malice; third, want of probable cause; fourth, damage. When he has alleged these four things, he has alleged all that he needs to prove, and there can be no denial that this petition specifically alleges all four. McKensie v. Railroad, 24 Mo.App. 392; Kennedy v. Holliday, 25 Mo.App. 503; Stocking v. Howard, 73 Mo. 25; Best v. Hoffber, 39 Mo.App. 682; Leonard v. Transit Co., 115 Mo.App. 349; Graves v. Scott, 2 L. R. A. 935; Hays v. Blizzard, 30 Ind. 457; Lytton v. Baird, 95 Ind. 349; Castro v. DeUriarte, 12 F. 250; Jones v. Gwynn, 10 Mod. 214; Chambers v. Robinson, 1 Strange 691; Dennis v. Ryan, 65 N.Y. 385; Randol v. Henry, 5 Sten. and P. (Ala.) 367; Schatton v. Hollenback, 149 Ill. 652; Shaell v. Brown, 28 Iowa 37; Parli v. Reed, 30 Kas. 534; Morris v. Scott, 21 Wend. 281; Stone v. Stevens, 12 Conn. 219; Stancliff v. Palmeter, 18 Ind. 324; Cline v. Schuler, 30 N.C. 484; Vinal v. Cobe, 18 W. V. 1; Merriman v. Morgan, 7 Oregon 68; 14 Am. and Eng. Ency. Law (1 Ed.), 29; Bishop on Non-Contract Laws, secs. 248-9; Cooley on Torts (2 Ed.), 215. (7) A petition which contains matter showing a prima facie case of the existence of probable cause need not specifically state that the prosecution was obtained by fraud, perjury, falsehood or other unfair means. Stainer v. Mining Co., 166 F. 220; Ziegler v. Powell, 54 Ind. 173; Cramer v. Barmon, 136 Mo.App. 673; Ross v. Hixon, 12 L. R. A. 760.

T. D. Hines for respondent.

(1) Before verdict the rule is to construe a pleading most strongly against the pleader. Baxton v. Railroad, 98 Mo.App. 501; Badger Lbr. Co. v. Muehlbach, 109 Mo.App. 649. (2) But it is not necessary to call into requisition the foregoing rule for our civil code imposes upon a plaintiff the duty of pleading in the petition, "a plain and concise statement of the facts constituting the cause of action." Even in justices' courts, however, the Supreme Court has held, that where the statement does not set forth the facts constituting the cause of action, nor does not advise the opposite party what he was sued for, the suit should be dismissed. Sidway v. Land & Live Stock Co., 163 Mo. 373; Brashears v. Strock, 46 Mo. 321; Davis v. Railroad, 65 Mo. 441; Swartz v. Nicholson, 65 Mo. 508. (3) The precise nature of the charges must be made to appear in the petition, and not by the pleading of legal conclusions, but by pleading the constitutive facts. General averments will not suffice. The issuable facts must be plead. McAdam v. Scudder, 127 Mo. 345. (4) And it has been frequently ruled in a state from whence our code is derived, that such statement of a legal conclusion is not the averment of an issuable fact, and therefore is not confessed to be true by a demurrer, raises no issue and need not be denied. Kittinger v. Traction Co., 54 N.E. 1084; 12 Ency. of Pl. and Pr., 1022; McKenzie v. Mathews, 59 Mo. 102; Verdin v. St. Louis, 131 Mo. 151; Craft v. Thompson, 51 N.H. 540; Bliss on Code Pleading (3 Ed.), sec. 413. (5) To support the action of malicious prosecution there must be affirmative proof of malice on the part of the prosecutor, and also want of probable cause. Neither one standing alone is sufficient. Sharpe v. Johnson, 59 Mo. 557, 76 Mo. 660; Vansickle v. Brown, 68 Mo. 627; Frissell v. Rolfe, 9 Mo. 859; Sappington v. Wilson, 50 Mo. 83. And if there be probable cause no malice however distinctly proved, will make the defendant liable. Sharpe v. Johnson, 59 Mo. 557; Burris v. North, 64 Mo. 436. (6) Probable cause has been defined as "belief founded upon reasonable grounds." The issue in such case is not whether the plaintiff was guilty of the crime charged in the criminal indictment, but whether defendant had probable cause to believe him so, nevertheless the fact whether he was guilty or innocent is material as bearing on the question of probable cause. Carp v. Insurance Co., 203 Mo. 345; Brennan v. Tracey, 2 Mo.App. 540. (7) The finding of an indictment against a party, or his commitment by an examining magistrate, is prima facie evidence of probable cause. Sharpe v. Johnson, 76 Mo. 660; Firer v. Lowery, 59 Mo.App. 92; Vansickle v. Brown, 68 Mo. 627; Peck v. Chouteau, 91 Mo. 138; Stanley v. Turner, 21 Mo.App. 244.

OPINION

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. [Ency. Pleading and Practice, vol. 13, page 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; Stainer v. San Luis Valley Land & Mining Co., 166 F. 220.]

In Hilbrandt 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 cause whatever, caused plaintiff to be prosecuted, states a good cause of action."

Respondent admits the general rule to be as above stated, but claims that the Supreme Court of this state, in Brown v. Cape Girardeau, 90 Mo. 377, 2 S.W. 302, has declared otherwise, and it is the duty of this court to follow the decision of the Supreme Court of this state. It is true language is found in the Brown case supporting respondent's contention, but the same is merely dictum and not a decision of the Supreme Court that we are required to follow. [Williams v. Railroad, 106 Mo.App. 61, 79 S.W. 1167.]

Our conclusion is that it is not necessary to allege the facts which prove or tend to prove want of probable cause, and that it is sufficient to allege, generally, that the prosecution was without probable cause.

It is next claimed the...