170 Mo. App. 338 | Mo. Ct. App. | 1913
This is an action for malicious prosecution the trial of which in the circuit court resulted, in a verdict arid judgment for' plaintiff in the sum of $400 actual and $600 punitive damages. Defendant appealed and argues:, first, that plaintiff failed completely to sustain his burden of proof relating to
The parties lived on adjoining farms in Chariton county for many years and had been intimate friends. They had owned agricultural tools and implements in partnership and had other neighborly dealings. Shortly before the events that gave rise to this controversy they had a settlement which defendant admits had ended in an unreconciled difference of opinion over a claim made by plaintiff for the services of a boar. This misunderstanding did not cause an open breach but thereafter, to borrow defendant’s description of, their relationship, the parties were not on friendly “but just on neighborly terms.” It appears that the various flocks of turkeys raised in the neighborhood in the year 1910 had exhibited a pronounced gregarious disposition and had selected defendant’s orchard as their favorite haunt and roosting place. Defendant had six and plaintiff eight turkeys and these with perhaps four score more had amalgamated into one grand flock. The wife of plaintiff who had taken the pains to mark their turkeys by putting “a ring in the neck” of the parent birds and by cutting off the little toes of the young ones, had made many visits to defendant’s farm to reclaim her own and invariably had brought them off without let or hindrance. On the last of these occasions, which- was early in December, she went to defendant’s farm accompanied by a boy, found and drove home her turkeys and put them in a pen with the exception of one that escaped. She did not meet defendant or any of his family but was in plain view of the house while driving the turkeys. About a week later plaintiff sold the turkeys to g huckster. The evidence of plaintiff tends to show that the turkeys were his property and there is no evidence in the record that he or his wife acted surreptitiously
In answer to questions relating to his motive in laying a criminal charge against his neighbor defendant did not say that he believed the latter had taken his property with a criminal intent and the most he would say was that he believed plaintiff had taken "his property and sold it.
The rules ,of law applicable to the facts of this case are well settled. Plaintiff’s acquittal of the criminal charge, of itself, would not support an action for malicious prosecution. It amounted merely to an adjudication that he had not taken the turkeys belonging to defendant with the intent to steal them. The burden devolved on plaintiff to show affirmatively that the'prosecution which terminated in his. favor was instigated by defendant maliciously and without probable causé. [Eckerle v. Higgins, 159 Mo. App. 177; Christian v. Hanna, 58 Mo. App. 37; Casperson v. Sproule, 39 Mo. 39; Sappington v. Watson, 50 Mo. 83; Sharpe v. Johnston, 59 Mo. 558; Matlick v. Crimp, 62 Mo. App. 21.]
Tested by these rules we conclude that the evidence tends to accuse defendant of having caused his neighbor to be prosecuted for a criminal and disgraceful offense without probable cause and with malicious purpose of doing him and his family a serious injury. In the facts and circumstances before him at the time he procured the arrest there was no suggestion of any criminal intent in the conduct of plaintiff and his wife and defendant’s own testimony shows quite clearly that he did not believe they had intended to steal' his property. Defendant appears to have believed that plaintiff had taken his turkeys and that such fact alone gave him the right to put the brand of thief on plain
The circumstances of which defendant had knowledge disclosed that regardless of whether the turkeys belonged to plaintiff or defendant plaintiff’s claim to them was consistent- with an honest intent and such being the case no reasonable and prudent man in the situation of defendant would have resorted to a criminal prosecution. The court did not err in overruling the demurrer to the evidence and in sending to the jury under proper instructions, the issues of probable cause and malice.
We cannot say, as a matter of law, that the assessment of actual damages in the verdict was excessive. The evidence shows that plaintiff incurred expense and loss of time in the amount of $50. The mental anxiety, pain and humiliation he suffered from a prosecution for a grave criminal offense were elements the jury were entitled to consider in the ascertainment of his compensatory damages. As is said by G-autt, J., in Carp v. Insurance Co., 203 Mo. l. c. 360: “The law concedes a wide latitude of discretion to the jury in actions of this- class, and their verdict should not be interfered with unless the appellate court can say it was the result of prejudice, passion or malice. Numerous considerations must necessarily enter into the
There is no prejudicial error in the record and the judgment will be affirmed. It is so ordered.