Wilkinson v. McGee

• Decision Date: 06 July 1915
• Citation: 178 S.W. 471,265 Mo. 574
• Parties: MARY E. WILKINSON, Appellant, v. ANDREW J. McGEE
• Court: Missouri Supreme Court

178 S.W. 471

265 Mo. 574

MARY E. WILKINSON, Appellant, v. ANDREW J. McGEE

Supreme Court of Missouri, Second Division

July 6, 1915

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

Affirmed.

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, p. 65; Cooley on Torts, p. 189. (2) The necessary allegations for and gist of every action for malicious prosecution are the presence of malice and want of probable cause. 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. & Eng. Ency. Law, p. 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 Kan. 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. Laugenberg, 97 Mo. 396; Lindsay v. Bates, 223 Mo. 306. (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; Ross v. Hixon, 26 Am. St. 123; Graves v. Scott, 2 L. R. A. (N. S.) 934; 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 Kan. 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.Va. 1; Merriman v. Morgan, 7 Ore. 68; 14 Am. & Eng. Ency. Law (1 Ed.), p. 29; Bishop on Non-Contract Laws, secs. 248-9; Cooley on Torts (2 Ed.), p. 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. (Mo.) 760. (8) The tendency of the courts to-day is against the sustaining of such demurrer as this defendant's. Gonsuland v. Rosomano, 176 F. 481.

T. D. Hines for respondent.

OPINION

FARIS, P. J.

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. Later, the jurisdiction of the Springfield Court of Appeals in such cases being successfully questioned, the case was re-transferred to the St. Louis Court of Appeals, wherein by an opinion by Caulfield, J., in which Nortoni, 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, 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, Missouri, 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. McGee's, fence.

"Plaintiff further states that this defendant, Andrew J. McGee, was instrumental in instigating, instituting, presenting, pressing and continuing this charge against her before 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. McGee, that the grand jury found and returned to the circuit court of Cape Girardeau county, Missouri, 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, Missouri, 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 two hundred dollars in order to secure her release.

"That afterwards on the 3rd day of May, 1909, it being the first day of the May term of the Cape Girardeau County Circuit Court, and in 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, Missouri, 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, Missouri; and that the defendant is now and was at all the times hereinbefore stated a resident of Cape Girardeau county, Missouri.

"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 the circuit court of Cape Girardeau county, Missouri, 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 lawabiding 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 two thousand dollars.

"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 two thousand dollars for compensatory damages, and the sum of two thousand dollars 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...