278 S.W. 551 | Ky. Ct. App. | 1925
Reversing.
In this action for malicious prosecution, appellee recovered a judgment against the appellant in the sum of $600.00, to reverse which this appeal is prosecuted.
Appellant insists that it was entitled to a peremptory instruction, both at the close of the appellee's case and at the close of the whole case, and to this contention we agree. Appellee's case was tried along with two other *141
cases against the appellant before the same jury. For some reason which does not appear in the record she was not present at the trial and did not testify. It appears that appellee and the other two plaintiffs were arrested charged with the violation of section 135 of the Penal Code of the United States of America by obstructing, through threats of violence, the due administration of justice in the United States district court for the eastern district of Kentucky, in the case of the Chesapeake Ohio Railroad Company v. International Association of Machinists, et al., which case grew out of the shopmen's strike in the summer of 1922. On appellee's examining trial before the United States commissioner she was dismissed. But no witness for any of the plaintiffs in these three actions undertook to say who arrested this appellee or who instituted these criminal proceedings against her on which this suit is based. Both the United States Commissioner Steele and County Judge Flannery, by whose testimony it is sought to connect the appellant with the arrest of appellee, state that they are unable to say that the appellant's agent had talked to them about this appellee in any connection. The witness Kash testified that he did not know who arrested appellee or who instigated and set on foot the proceedings against her. Appellant's proof shows that the proceedings against appellee were instituted by an affidavit filed by the Honorable Sawyer A. Smith, district attorney of the federal court for the eastern district of Kentucky, and that he instituted such proceedings on information furnished him by one Treadway, a deputy United States marshal. Mr. Smith further testified that so far as he knew neither the appellant nor any of its agents had anything to do with the arrest and prosecution of appellee. In McClarty v. Bickel,
It may further be added that it was incumbent upon appellee to prove that the proceedings instituted against *142
her were set on foot without probable cause. The appellee utterly failed to prove such lack of probable cause. She only proved that she was dismissed when brought before the United States commissioner. In Emler v. Fox,
For the reasons hereinbefore set out, the court should have sustained appellant's motion for a peremptory instruction, and for its failure so to do its judgment is reversed, with instructions to proceed in conformity with this opinion.