181 Mo. App. 281 | Mo. Ct. App. | 1914
This is an action for malicious prosecution. It is founded upon the charge in the petion that defendant maliciously and without probable cause had plaintiff arrested and prosecuted for embezzlement. Plaintiff was acquitted of the crime, and thereupon brought' this suit. The jury gave him a verdict of $1 actual and $1 punitive damages. Defendant has appealed alleging, as the sole ground of error, that his demurrer to the evidence should have been sustained.
The charge of embezzlement upon which plaintiff was arrested was based on the claim made by defend
It seems that defendant was operating a farm on which was a dairy and a herd of dairy cows, and that March and he entered into the written contract above mentioned; that from the date of said contract, Whether it was orally changed or not, plaintiff delivered milk from said dairy to customers in Columbia down to the evening of June 5, 1912, when plaintiff, without letting defendant know anything about it, had his wife to pack up their furniture and purchase three railroad tickets, and that night, under circumstances showing that plaintiff was trying to keep their departure secret, left for Pratt, Kansas. Before going, plaintiff collected various sums due from customers. He told various persons, who saw the preparations to leave, that his wife was going but he was not, and instead of
The next morning defendant noticing that plaintiff did not appear at the dairy as usual, and knowing that he was owing him for milk under the arrangement governed by the written contract and suspecting that something was wrong, went to Columbia and made inquiries among the customers. There he learned that plaintiff had made collections from numbers of them of whom he had denied making any collections when asked by defendant in reference thereto. Defendant also discovered that plaintiff had left secretly for Pratt, Kansas, the night before. He laid the facts before the prosecuting attorney, hut did not tell the prosecuting attorney that March had hitherto borne a good reputation. He told the prosecuting attorney of the written contract and that it had been changed, as hereinbefore stated. Upon the facts given, the prosecuting attorney advised him that the crime of embezzlement had been committed. Defendant thereupon swore out a complaint and paid for and assisted the officers in sending a telegram to Pratt, Kansas, whereby the plaintiff was arrested and held.
"Where it is claimed that a demurrer to the evidence should have been sustained, the appellate court cannot interfere if there is any substantial evidence to support the verdict. ' [Citizens Bank v. Lowder, 141 Mo. App. 607; Hobbs v. Williams, 162 S. W. 335.] In. considering such demurrer the appellate court can only do so from the viewpoint of plaintiff’s evidence. [Conway v. Metropolitan Street Ry., 161 Mo. App. 84.]
The question as to whether the evidence wholly failed to show a want of probable cause in this case comes down to the question whether or not the written contract was orally changed, on May 25, as defendant claims it was. If it was not changed, plaintiff could not be guilty of embezzlement no matter how reprehensible his conduct may have been in hot paying defendant for the milk he had bought of him.
Whether it was changed or not was a fact clearly within defendant’s knowledge. As to this fact he could not have been misled by appearances. He laid the facts before the prosecuting attorney and told him the contract had been changed. Now, if this was not a fact, if the contract had not been changed, defendant knew well enough that no crime had been committed, and if he knew this, he was clearly without probable cause for the institution of the criminal charge. If, in his own mind he knew that plaintiff merely owed him a debt for milk he had bought of defendant, and that plaintiff had not converted to his own use the proceeds of sales he had made as the agent of defendant, and yet defendant told the prosecuting attorney that plaintiff had done the latter and procured plaintiff’s arrest and prosecution, then not only was there a lack of probable cause, but such course
This being so, as the appellate court cannot in this case say there is no substantial evidence to support the jury’s finding, it is without authority to disturb the verdict. But, as we understand defendant’s claim, his position is that plaintiff’s actions and conduct in suddenly and clandestinely leaving without warning and his deception practiced upon defendant and upon those who saw his preparations to leave, so completely contradict his testimony concerning a change in the contract and his reasons for and manner of leaving, as to nullify that evidence and make it amount to no testimony at all. If we were the triers of the facts or were permitted to weigh the testimony we would unhesitatingly say that the contract was changed as defendant says it was, and that not only did he have probable cause to believe plaintiff embezzled the funds after May 25, and hurriedly left town for that reason, but that plaintiff did in fact do these things. But the trouble is the facts are disputed, and, when such is the case, the jury must settle the issue, and they have done so adversely to defendant. The fact that they gave only $1 actual and $1 punitive damages does not, of itself alone, show that there was no evidence in support of plaintiff’s case. Many circumstances may have entered into the matter leading the jury to inflict only the lighest punishment although they believed the facts were such as to disclose a case.
For the reasons indicated, we are without authority to disturb the verdict. The judgment is accordingly affirmed.