Wilkinson v. Goodfellow-Brooks Shoe Co.

• Decision Date: 17 November 1905
• Docket Number: 5,218.
• Citation: 141 F. 218
• Parties: WILKINSON v. GOODFELLOW-BROOKS SHOE CO. et. al.
• Court: U.S. District Court — Eastern District of Missouri

141 F. 218

WILKINSON v. GOODFELLOW-BROOKS SHOE CO. et. al.

No. 5,218.

United States Circuit Court, E.D. Missouri, Eastern Division.

November 17, 1905

John A Harrison and R. F. Walker, for plaintiff.

Wm. B & Ford W. Thompson and Henderson & Becker, for defendants.

FINKELNBURG District Judge.

This is an action for malicious prosecution, the petition charging that the defendants, with malice and without probable cause instituted and prosecuted a proceeding in involuntary bankruptcy against plaintiff; that upon a hearing of said proceeding it was adjudged and decreed that the petitioners had failed to sustain the allegations as to the alleged acts of bankruptcy; and that the proceeding was then and there dismissed by the court, and final judgment rendered in favor of the present plaintiff, the defendant in the bankruptcy proceeding. It is further alleged that the defendant, with malice and without probable cause, appealed from the judgment and decree of the District Court, and that subsequently said appeal was voluntarily dismissed by the present defendants whereby said proceeding in bankruptcy was finally determined in favor of the present plaintiff. The defendants filed a general demurrer on the ground that the petition and the allegations therein contained do not constitute a cause of action against the defendants.

When the demurrer in this case was argued, I thought it well settled that an action for malicious prosecution would lie for maliciously instituting a proceeding in bankruptcy without probable cause. After examining the exhaustive briefs submitted by counsel on both sides I find I was in error. The question is not well settled, but seems to be open to much contention. The argument on the part of the defendants is that a proceeding in bankruptcy, not accompanied by a seizure of the alleged bankrupt's property, is a mere civil action, and that malicious prosecution will not lie for instituting a mere civil action. The bankruptcy proceeding involved in the case at bar was not accompanied by any seizure of property.

The question whether an action will lie for the malicious institution and prosecution of an ordinary civil suit without probably cause is one on which the authorities are divided; a number of courts of last resort (including Missouri) holding that it will, and a number holding that it will not. According to the citations in the briefs, it would appear that numerically the preponderance is somewhat in favor of the affirmative of the proposition, but that is not of importance. The subject is reviewed by Judge Sherwood in Smith v. Burrus, 106 Mo. 94, 16 S.W. 881, 13 L.R.A. 59, 27 Am.St.Rep. 329, in which case the Supreme Court of Missouri ranged itself on the affirmative side of the proposition. The federal courts are also divided on the subject. See Wade v. National Bank of Commerce (C.C.) 114 F. 377; Cooper v. Armour (C.C.) 42 F. 215, 8 L.R.A. 47; Burnap v. Albert, 4 Fed.Cas.No. 2,170; Tamblyn v. Johnston, 126 F. 270, 62 C.C.A. 601. In the case first mentioned there is a strong and persuasive opinion by Hanford, J., on the affirmative side of the question. It is true that in the Tamblyn Case Judge Thayer says that the weight of authority is against the right, but the precise question was not before the court in that case for decision, and the remark may be taken as a dictum.

Thus far I have considered the general question whether an action for damages will lie for the institution of an ordinary civil suit not accompanied by any arrest of the person or seizure of property, and we have seen that there is much conflict of authority on this subject. Passing on, now, to the next question in the case at bar, whether a proceeding in bankruptcy is 'a mere civil suit,' so as to be involved in the same conflict of authority, or whether such proceeding stands on exceptional grounds, we find a number of English cases, and one decision of the United States Supreme Court, in which suits of that kind were entertained, and in which it was held that the action would lie. They are as follows: Farley v. Dawkes, 4 Ell.& Bl. 499; Brown v. Chapman, 1 L.Bl. 427; Whitworth v Hall, 2 B.& Ad. 698; Hall v. Weakley, 5 C.& P. 361; Cotton v. James, 1 B.& Ad. 128; Johnson v. Emerson, L.R. 6 Exchr. 329; Stewart v. Sonneborn, 98 U.S. 187, 25 L.Ed. 116. But counsel for defendants call attention to the fact that in all these cases the proceeding in bankruptcy was accompanied either by a seizure of the alleged bankrupt's property, the appointment of a receiver, or other process of similar import, and that the effect of these decisions must be limited to such circumstances. Plaintiff's counsel also cite the following text-writers in support of the right to bring such a suit: 2 Addison on Torts (Wood's Ed.) § 867, p. 81; Cooley on Torts, p. 187; 1 Hilliard on Torts, p. 267; Webb's Pollock on Torts, p. 400; Moak's Underhill on Torts...