278 S.W. 552 | Ky. Ct. App. | 1925
Reversing.
The appellees, VanHoose and Perry, each brought his action against the appellant, Chesapeake and Ohio Railway Company for malicious prosecution. The two cases were tried together before the same jury and a verdict returned for the plaintiff in each case in the sum of $600.00. From the judgments entered on those verdicts these appeals are prosecuted. Although they were not consolidated, it has been suggested that we hear these two appeals together and we have done so.
In their petitions the appellees pitched their cases on the ground that they had been arrested on a warrant from the United States district court for the eastern district of Kentucky charged with the offense of contempt of that court in that they had violated an injunction issued by it in the case of Chesapeake and Ohio Railway Company v. International Association of Machinists, et al., which grew out of the shopmen's strike in the summer of 1992. The appellees were not quite accurate in this statement, because the Warrant under which they were arrested charged them with violating section 135 of the Penal Code of the United States on account of certain alleged acts on their part in the obstruction of the administration of justice in the above mentioned case. However, for the purpose of this opinion this inaccuracy is immaterial. It is averred, in substance, in these petitions that the appellant through its duly authorized agents instigated and set in motion the proceedings whereby the appellees were arrested, maliciously and without *261
probable cause, and that on a final hearing they were dismissed. The Perry petition specifically avers that the appellant acted without probable cause. The VanHoose petition does not per haec verba charge that his prosecution was instituted without probable cause, but it does set out facts which if true amount to a lack of probable cause, and this is sufficient under the case of Cook v. Bratton,