159 Mo. App. 177 | Mo. Ct. App. | 1911
Action for malicious prosecution-In September, 1910, the appellant was deputy game commissioner, and resided at Salem. On Sunday, the 25th day of September, 1910, the plaintiff resided
.After obtaining this information, the appellant appeared before a justice of the peace and asked to have
In addition to the above, a Mrs. Strain testified at the trial that she thought she heard the plaintiff say: “Say I am not game to kill them out of season,” and that she told her husband what she had heard.
The petition asked for a judgment of one thousand dollars actual damages, and one thousand dollars punitive damages. The cause was tried before a jury, resulting in a verdict in favor of the plaintiff for the sum of one dollar actual damages, and from the judgment rendered thereon the defendant appealed to this court.
As it is essential that the plaintiff’s complaint affirmatively allege all the facts necessary to support his action, it follows that he must assume'the burden of proof in respect to each of these necessary allegations, and by his evidence, establish to the satisfaction of the court and jury, that he has been prosecuted by the defendant; that the prosecution terminated in his favor, and that it was malicious and without probable cause.
There is no conflict in the authorities on this proposition. There is, however, much conflict as to what makes a prima facie case of want of probable cause. It is frequently said that the record, showing the. discharge of the defendant in the prosecution, makes a prima facie case of the want of probable cause, and with the introduction of this record the plaintiff has made a case for the jury, and the defendant is called upon to offer affirmative testimony of probable cause.
On the other hand, there are many cases holding that the plaintiff must offer additional testimony and cannot rest on the introduction of the record. The authorities on either side of the proposition are collected in the notes of Bekkeland v. Lyons, 64 L. R. A., 481; Ross v. Hixon, 26 Am. St. Rep. 154; Davis v. McMillan, 3 L. R. A., N. S. 928.
In this case we are cited by counsel for appellant to a list'of cases in this state holding that the introduction of the record does not make a prima facie ease, and by the respondent a list of cases holding that a prima facie case is thus made. Unless the decisions are carefully examined, one will be inclined to believe that they are in conflict. But when the cases have been carefully examined, it will be learned that there is not much conflict. To the failure to give proper consideration to
In Williams v. Vanmeter, 8 Mo. 339, the court said: “It cannot be maintained that, in an action for a malicious prosecution, proof that the defendant instigated it, and a production of the record of acquittal, will entitle the plaintiff to a verdict. We are not aware that the bare production of the judgment of acquittal has ever been held sufficient for that purpose.” In
In Casperson v. Sproule, 39 Mo. 39, the defendant therein had appeared before a grand jury and tried to procure an indictment against the plaintiff. The grand jury refused to indict. The defendant then sued for malicious- prosecution, and the court held that the failure of the grand jury to indict was like the magistrate discharging on a prehminary examination, and. was sufficient evidence to take the case to the jury on the question of probable cause.
In Boeger v. Langenberg, 97 Mo. 390, 11 S. W. 223, it is said: “It is claimed that the acquittal tends to estabhsh want of probable cause in moving that prosecution. This contention is so clearly contrary to the precedents that we dispose of it by merely referring to them.”
In Thomas v. Smith, 51 Mo. App. 605, the court said: “It is true that the plaintiff, having been discharged upon prehminary examination by the committing magistrate, could not be non-suited.” In that case there had been a prehminary examination.
In Stubbs v. Mulholland, 168 Mo. l. c. 77, 67 S. W. 650, Sherwood, Judge, used the following language^/ “That probable cause was wholly lacking in this case is shown prima facie by the discharge of the accused. This alone would call on defendants for their defense.” That, also, referred to a ease wherein there had been a prehminary examination before a justice, and the defendant therein discharged on the ground that the prosecution was without probable cause.
In Smith v. Burrus, 106 Mo. l. c. 99, 16 S. W. 881, it is said: “The mere discontinuance of a criminal prosecution, or the acquittal of the accused, will estabhsh for the purposes of this suit neither malice nor want of probable cause.”
Prom these cases, the following rules are established in this state:
Second, if on a prehminary examination before a magistrate, the defendant was discharged, then the introduction of that record makes a prima facie case of the want of probable cause.
Third, if, without any hearing before the justice, the prosecuting attorney voluntarily dismissed the criminal prosecution, then the record of such dismissal is not sufficient to make the prima facie case.
The Supreme Court in Smith v. Burrus, supra, is authority for the third branch of the rule, and is supported by the great weight of authority.
In Davis v. McMillan, 105 N. W. 862, the Supreme Court of Michigan said: “We think it can safely be said that the weight of authority denies the rule that discharge by a magistrate upon request of the prosecuting attorney is prima facie evidence of want of probable cause.”
In 19 Am. and Eng. Ency. of Law, 664, it is said: “The weight of authority is believed to favor the rule that the discharge of the plaintiff in malicious prosecution by the examining magistrate is prima facie evidence of want of probable cause, but it has been held that lack of probable cause is not shown by the abandonment of the prosecution by the prosecutor, by tjbe dismissal of the charge by the prosecutor’ by the "'oluntary discontinuance of the prosecution, or by smissal for want of prosecution.”
A discharge not brought about by the procurement of the defendant, nor attended by circumstances involving the conduct of the defendant which of themselves indicate a want of probable cause, is no evidence of a want of probable cause. To the same effect is Langford v. Boston & A. R. Co., 144 Mass.
Smith v. Clark, supra, was decided by the new state of Utah, January 7, 1910, and the Supreme Court of that state, after reviewing the authorities, followed the rule of our court in Smith v. Burrus, and said: “The rule is extended far enough when it makes the discharge or dismissal, resulting from a hearing or an examination of the offense charged, evidence of the want of probable cause in the civil action against the prosecutor for malicious prosecution. But since the burden resting upon the plaintiff in the action for malicious prosecution to prove a want of probable cause for the prosecution involves the proof of a negative, there is ground for holding that the discharge or dismissal resulting from a want of evidence, is prima facie evidence of a want of probable cause. In such ease the magistrate determined that there was no probable cause for believing the accused guilty. But we see no good reason for holding that a mere discharge or dismissal, standing alone, and resulting not from any examination or hearing of the charged offense, is evidence of the want of probable cause, for the magistrate in such case did not investigate nor determine whether there was or was not probable cause for believing that an offense had been committed. A finding of a want of probable cause is not necessarily inherent nor involved in such a discharge or dismissal. The discharge here was made without a hearing, and without any judicial investigation. We are therefore of the opinion that the mere dismissal of the criminal action and the discharge of the plaintiff was no evidence in the civil action to show a want of probable cause for the prosecution.”
'When the defendant offered his demurrer, the plaintiff had introduced testimony tending to prove that he was not guilty of the offense charged in the information; that the appellant herein had made an
The defendant did not stand on his demurrer, but offered testimony, which, in our judgment,' did not strengthen plaintiff’s case. The undisputed facts show that the plaintiff herein, on Sunday, the 25th day of September, 1910, was hunting in violation of the laws of this state, as section 4801, Revised Statutes 1909, makes it a misdemeanor to hunt on Sunday, and fixes the punishment at a fine not exceeding fifty dollars; that the report was current in the town where he lived, that he had also on that day killed a turkey in violation of the law; that as a result of this report, Prof. Scott, a citizen of the town, wrote to the appellant requesting him to come to Rolla for the purpose of investigating the matter; but when the appellant arrived at Rolla, he was told by Mrs. Robertson that others knew all about the matter, but "she did not want to get mixed up in it, and referred him to the others for the testimony; that when he saw the persons to whom he was referred, they told him that they had seen the respondent, on Sunday evening, with a wild turkey, and that he had said he was not afraid to Mil.one out of season; that he thereupon went before a justice for the purpose of having the respondent arrested on the charge, and was referred to the prosecuting attorney; that he interviewed the prosecuting attorney, and the interview resulted in the prosecuting attorney filing an information; but before tMs case was called for trial, the prosecuting attorney interviewed one of the boys
There is not a word of testimony tending to prove any dislike or ill-feeling on the part of the appellant toward the respondent, and he did not even ask that he be prosecuted for. hunting on Sunday, and the maximum punishment for which is the same as for killing a turkey during the closed season. The jury assessed no punitive damages, and fixed the actual damages at the insignificant sum of one dollar, thereby showing that plaintiff’s cause was without substantial merit.
In a similar case, Judge Ellison, of the Kansas City Court of Appeals, said: “In view of the entire evidence we regard the verdict of the jury as without substantial support. The amount of the verdict is a half confession of this. If defendant is guilty of a malicious prosecution without probable cause he should have been held to compensate bim for the wrong so committed. The verdict of forty dollars was no compensation to be rendered by a man to one whom he had accused of felony without reasonable cause or provocation.” [Nolan v. Kaufman, 70 Mo. App. 651.]
The respondent contends that the-appellant should have consulted the persons with whom he was hunting on Sunday before filing the affidavit before the justice. It cannot be said from the testimony that the appellant knew that others were with the respondent at the time it was claimed the turkey was killed. And even if he did, it would be questionable whether he was required to go to such parties, when it was also claimed that they were hunting with the respondent on Sunday in violation of law.
We dispose of the ease with the following quotation from the Kansas City Court of Appeals, in Christian v. Hanna, 58 Mo. App. 37: “Where the