66 Mo. App. 231 | Mo. Ct. App. | 1896
The plaintiff recovered a judgment for heavy damages against both defendants in an action for malicious prosecution. The defendants, after unsuccessful motions for new trial and in arrest of judgment, appeal and assign numerous errors, which will be noticed in their regular order.
The facts which bear upon the errors assigned may be summarized as follows: The plaintiff, who was the wife of Thomas Eagleton, bought on December 15 and 16, 1893, from the defendant Longley, who was the salesman of the defendant Kabrich, a bill of merchandise amounting to $38.75. On the third day of January, 1894, Greorge Kabrich & Company instituted an action by attachment against Thomas Eagleton for the recovery of this bill, and assigned as the only ground of attachment in the affidavit that the defendants “had
“ State oe Missoubi, 1 “County of Audrain. J “State oe Missoubi, Plaintiff; O. C.'
Longley, Prosecutor, v. “Mbs. Thos. Eagleton, Defendant.
“Geo. Kabrich & Company, by C. C. Longley,makes affidavit and also makes oath based upon information of O. C. Longley, and informs the court that Mrs. Thos. Eagleton on or about the fifteenth of December, at the county and state aforesaid, did then and there unlawfully and feloniously, with the intent to cheat and defraud, obtain from one G-eo. Kabrich & Company diferent kinds of dry goods and merchandise, of the value of $38.75, by means and by use of a false and fraudulent representation and statements, and false pretense, contrary to the form of the statute and against the peace and dignity of the state.
“G-eo. Kabbich & Co.,
“By C. C. Longley.”
A warrant was issued on this affidavit against the plaintiff by name of Mrs. Thomas Eagleton, and she was arrested thereon and placed in the county jail. The plaintiff was pregnant at the time of her arrest, and the labors of childbirth came upon her while she was in jail. She was thereupon, at the request of the county physician, removed to a neighboring hotel, where she gave birth to a child the next day. The day when the child was born the defendant Longley ap
I. Complaint is made that the petition fails to state a cause of action. This complaint is without merit. The petition contains a great deal of surplus-age, but does contain the essential averments to support this action, namely: That the defendants procured the issuance of a warrant charging the plaintiff with a felony, that the plaintiff was arrested upon said warrant, and that in all this the defendants acted maliciously with malice toward the plaintiff and without any probable cause whatever; also that the prosecution was dismissed by the defendants, and the plaintiff discharged.
II. The assignment, that the evidence was insufficient to connect the defendant Kabrich with the prosecution, is likewise without merit. It is not claimed that a master can be held liable for a malicious prosecution instituted by his servant without his (the master’s) directions, but there was sufficient evidence in the case to authorize the inference that the prosecution was by the direction of Kabrich. • It was shown that Kabrich had repeatedly and at various times, and shortly preceding the arrest, threatened the plaintiff with the arrest unless she would pay the bill, and that, after the pros
III. There was no error in the ruling upon the evidence. The record in the attachment suit was properly admitted. It had a tendency to show that the merchandise was sold both on the fifteenth and sixteenth of December. It had a further tendency to show that neither in the original or amended affidavits for attachment was any claim advanced that the debt sued for was fraudulently contracted, or that the debtor had failed to pay the price of the articles delivered which he was bound to pay for upon delivery. Yet these two grounds are the only oneg upon which the subsequent arrest for obtaining the goods under false pretenses are based according to the defendants’ testimony. The evidence, therefore, had a very material bearing upon the question of probable cause.
The court ruled out evidence tending to show that the plaintiff had been arrested in another action upon a similar charge, and had settled the debt to procure her own release, and complaint is made of that ruling. It was decided in Hill v. Palm, 38 Mo. 13-20, that it is not competent to show, in support of probable cause, that the plaintiff was guilty of another and different
IV. Complaint is made of the instructions given for plaintiff. The first instruction tells the jury, in substance, that if Longley with malice and without probable cause instituted the prosecution, it the duty of the jury to return a verdict for the plaintiff. This instruction is erroneously incomplete in not confining the recovery in the case stated to Longley alone. This error is, however, harmless in view of the fact that the court at the instance of the defendants gave the following instruction:
“The court instructs the jury that, in order to entitle plaintiff to recover against the defendant, George Eabrich, the jury must believe from the evidence that the warrant was sued out by him or counseled and advised by him, or that he voluntarily participated in the prosecution, and that it was carried on with his approval, to have said warrant issued without reasonable or probable cause therefor, and with malice toward the plaintiff; and if the jury should not so believe, they must find for the defendant, Kabrich.”
Complaint is also made of the plaintiff’s second instruction, which tells the jury that the fact that the prosecution was dismissed and the defendant discharged is evidence tending to show that there was no probable cause for it. It has been repeatedly decided in this state that the discharge of the plaintiff by the committing magistrate, or the refusal of the grand jury to find an indictment, was evidence of a want of probable cause. Casperson v. Sproule, 39 Mo. 39; Callahan v. Caffarata, 39 Mo. 136; Sappington v. Watson, 50 Mo.
The instruction on the subject of punitive damages told the jury that they might, and not that they should, allow such damages; hence it was correct, for the case was certainly one which warranted the recovery of punitive damages. In cases of that kind, evidence of the defendant’s financial ability has always been held
Other minor complaints are made by the defendants, all of which are substantially covered by what has been hereinabove stated. It results from the foregoing that the judgment of the trial court must be affirmed. So ordered.