Wilkerson v. McGhee

CourtUnited States State Supreme Court of Missouri
Citation265 Mo. 574,178 S.W. 471
Docket NumberNo. 17394.,17394.
PartiesWILKERSON v. McGHEE.
Decision Date06 July 1915

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

Action by Mary B. Wilkerson against Andrew J. McGhee. From a judgment for defendant, plaintiff appeals. Affirmed.

Action for malicious prosecution, brought in the Cape Girardeau court of common pleas, wherein a demurrer to the petition was sustained, and, plaintiff refusing to further plead, final judgment and this appeal followed.

The case went first to the St. Louis Court of Appeals, but upon the establishment of the Springfield Court of Appeals it was transferred to the latter court, wherein an opinion was written. 153 Mo. App. 343, 134 S. W. 595. Later, the jurisdiction of the Springfield Court of Appeals in such cases being successfully questioned, the case was retransferred to the St. Louis Court of Appeals, wherein, by an opinion by Caulfield, J., in which Norton!, J., concurred, the opinion of the Springfield Court of Appeals was adopted as the opinion of the St. Louis Court of Appeals. To this action and to the said opinion Reynolds, P. J., dissented in an opinion filed,1 and, deeming the ruling in the carrying opinion contrary to our decisions, asked that the case be certified up to us, which was accordingly done; hence our jurisdiction.

As foreshadowed, the question is upon the goodness on demurrer of the petition, the pertinent parts of which, caption and signature omitted, read thus:

"Comes now the plaintiff and, first having obtained leave of court so to do, files this, her amended petition, and for cause of action plaintiff states that on or about the 10th day of January, 1909, at Jackson, in the county of Cape Girardeau, and state of Missouri, the defendant maliciously intending to injure the plaintiff in her good name and reputation, and without reasonable or probable cause therefor, appeared before the grand jury of Cape Girardeau county, Mo., summoned for the January term, 1909, of the Cape Girardeau county circuit court, and did then and there make complaint of and charge this plaintiff with having committed a misdemeanor in this: That he charged her with having unlawfully, wantonly, and without right broken, cut down, injured, and carried away a portion of his (the said Andrew J. McGhee's) fence.

"Plaintiff further states: That this defendant, Andrew J. McGhee, was instrumental in instigating, instituting, presenting, pressing, and continuing this charge against her More the said grand jury, and that he maliciously, wantonly, and without probable or reasonable cause therefor produced and furnished the names of witnesses that came before the grand jury, and that it was upon the testimony so furnished and produced by him (the said Andrew J. Mc-Ghee) that the grand jury found and returned to the circuit court of Cape Girardeau county, Mo., a true bill of indictment against this plaintiff, and that, upon said true bill of indictment so found and returned, a warrant or capias for the arrest of this plaintiff was issued by the clerk of said court. That thereafter, on the 16th day of March, 1909, this plaintiff was arrested upon said warrant or capias by the sheriff of Cape Girardeau county, Mo., and was taken in his (the said sheriff's) custody and charge, under arrest, and was compelled to so remain under arrest until she procured and gave bail in the sum of $200 in order to secure her release. That afterwards, on the 3d day of May, 1909, it being the first day of the May term of the Cape Girardeau county circuit court, and fn compliance with said warrant of arrest, this plaintiff appeared in the circuit court of Cape Girardeau county for trial and answer to make to said criminal charge, and on said day filed a motion to quash said indictment. That she remained in attendance upon said court from day to day until the 8th day of May, 1909.

"Plaintiff further states that on said 8th day of May, 1909, said indictment so found against this plaintiff for said crime so charged against her was quashed by the circuit court of Cape Girardeau county, Mo., and this plaintiff was fully acquitted and discharged by said court, and that said prosecution was thereby wholly and entirely terminated.

"Plaintiff further states that she Is now, and was at all the times hereinbefore stated, a single and unmarried woman and a resident of Cape Girardeau county, Mo.; and that the defendant is now, and was at all the times hereinbefore stated, a resident of Cape Girardeau county, Mo.

"Plaintiff further states that she has been compelled to retain counsel at much expense to defend said malicious prosecution, and that she has lost much valuable time and has been greatly inconvenienced and put to much expense in attending upon circuit court, of Cape Girardeau county, Mo., and in the preparation for the trial of said cause; that said malicious prosecution has caused her much mental pain and suffering; that she is an unmarried woman and has always enjoyed the reputation of being a peaceable and law-abiding person, having a wide acquaintanceship in the community in which she lives; that, by reason of said wanton and malicious prosecution so instituted by defendant without probable or reasonable cause therefor, she has been brought into contempt and ridicule and greatly injured in her good name, fame and reputation to her damage in the sum of $2,000.

"Plaintiff further states that the action and proceedings of this defendant against her were so grossly vindictive, wanton, and maliciously instituted for the purpose of injuring this plaintiff in her good name and reputation that defendant has subjected himself to punitive damages.

"Wherefore plaintiff prays judgment against this defendant for the sum of $2,000 for compensatory damages and the sum of $2,000 for punitive damages, together with her costs in this behalf expended."

To this defendant interposed both a general and a specific demurrer, which, leaving out caption and formal parts, reads thus:

"Now comes the defendant in the above-entitled cause and demurs to the plaintiff's amended petition herein and for reasons for this demurrer says:

"(1) That said amended petition does not state facts sufficient to constitute a cause of action against defendant.

"(2) That said amended petition shows on its face that plaintiff was regularly indicted by a grand jury which raises the legal presumption that the indictment was found with and on account of probable cause; and that there are no allegations in the amended petition sufficient to overcome the legal presumption of the existence of probable cause afforded the indictment by a grand jury.

"(3) The legal presumption of probable cause afforded by pleading that plaintiff was indicted is not overcome by any charge in the amended" petition that said indictment was procured through false or fraudulent testimony procured by defendant, or that defendant believed plaintiff innocent of the charge, and that the amended petition shows on its face that the prosecution was with probable cause."

Oliver & Oliver, of Cape Girardeau, for appellant. T. D. Hines, of Jackson, for respondent.

FARIS, P. J. (after stating the facts an above).

There is but one question in the case: Is the petition good on demurrer? This question in the last analysis of the concrete facts and respective contentions of the parties may be further simplified and narrowed by saying that the question is whether in a case wherein it is averred that plaintiff was indicted by a grand jury, and that such indictment was quashed, it is sufficient without more, to aver that the prosecution of plaintif was "without probable cause." In short, must the pleader negative by apt allegations in his petition the prima fade probable cause connoted by the fact of the indictment by a grand jury, absent a trial and acquittal upon the indictment, and present a mere quashal of the indictment?

Obviously the point is somewhat novel, and the case is to an extent sui generis. Obviously, also, for these reasons the ancient dorms and the well-thumbed precedents are of little value, and we are forced back to a consideration of a few first principles of pleading under the Code. Time was mayhap when a pleading could be measured upon the bed of Procrustes, but upon a later time the statute came in and ordained that the petition shall contain as a matter of substance, as contradistinguished from mere form, "a plain and concise statement of the facts constituting a cause of action, without unnecessary repetition." Section 1794, R. S. 1909. Whatever may have been the first view of those jurists, who coming to apply the Code to pleadings yet held by construction to the ancient lore, and grudgingly and but halfheartedly gave effect to the simplified procedure of the statute, it is now well settled that the excerpt quoted means what it says. Shohoney v. Railroad, 223 Mo. 649, 122 S. W. 1025; Sidway v. Missouri, etc., Co., 163 Mo. 342, 63 S. W. 705. In the Shohoney Case, supra, 223 Mo. at page 671, 122 S. W. at page 1032, it was said:

"It is the duty of a plaintiff to state his case with such clearness and definiteness that his adversary may know exactly what the complaint against him is. Our statute says the petition must contain `a plain and concise statement of the facts constituting a cause of action, without unnecessary repetition.' Section 592, R. S. 1899; Ann. Stat. 1906, p. 612. That duty devolves on the plaintiff, and it is one that appeals to our sense of justice and fair play. There are no words in the Code of Civil Procedure more significant of the spirit which actuated its authors than the words just quoted. The requirement is that the facts be stated, not mere conclusions of law."

We say so much, largely to point the moral with which we began, that because hundreds of cases in this state and elsewhere have ruled it to be sufficient ordinarily to aver that the prosecution was "without...

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