18 Mo. App. 346 | Mo. Ct. App. | 1885
delivered the opinion of the court.
This action was brought for a malicious prosecution against Barnett H. Engelke, Louis F. Engel, John L; Bernecker, and the Excelsior Distilling Company, a corporation. At the trial the plaintiff dismissed as to Engel and Bernecker. The jury returned a verdict for Engelke, and a verdict in favor of the plaintiff against the Excelsior Distilling Company for $300.00. Judgment was entered on the verdict, and the Excelsior Distilling Company appealed.
Counsel for the appellant seem to 'have exhausted all the possibilities of the record in multiplying objections. We shall address ourselves only to those which seem to be of a substantial character.
1. There is no error in permitting the witness, Hermann, to testify as to communications which had passed between him and the defendant, Engelke, touching the criminal prosecution against the plaintiff. Although Hermann nominally represented the state in that prosecution, he never was the attorney of any of the defendants touch
2. The court committed no error in submitting the case to the jury. There was evidence tending to show that the warrant was sworn out by the defendant, Engelke; that this defendant was at the time the treasurer of the Excelsior Distilling Company, and had charge of its legal business ; that before instituting the prosecution he had consulted the president of the company, Mr. Bernecker, who had told him to do what he thought proper; that the prosecution was upon a charge of obtaining $400.00 in money, and three barrels of liquor from the Excelsior Distilling Company, by false pretenses; and that one-half of the fee, charged by the stenographer for taking notes of the testimony at the examination in the court of criminal correction, was paid by the Excelsior Distilling Company, and entered upon the books of such company. It also appeared that the plaintiff had failed a month after obtaining the money and the goods in question, and had assigned all his property, including his book accounts, to his brother, T. A. Meysenberg, in payment of a large indebtedness due by him to the latter; that the criminal prosecution was instituted seventeen days after this assignment, and that, while the prosecution was pending in the court of criminal correction, a proposition was made by those in charge of it to the attorney of the plaintiff (defendant in that prosecution), to settle the matter if he would pay fifty cents on the dollar of the debts which he owed to the Excelsior Distilling Company, and to clients of Mr. Hermann, the attorney who was conducting the prosecution; We take it that the testimony was such that the jury were authorized to infer from it that the criminal prosecution against the plaintiff had been concocted by Hermann, representing certain creditors of the plaintiff, and Engelke representing the Excelsior Distilling Company ; that the object of the prosecution was to coerce the plaintiff, or his friends, into paying what he-owed-the clients of Hermann and the Ex
3. But though this may have been the motive of the prosecution, the defendants were not liable unless there was no probable cause for instituting it; because, if there was probable cause for instituting it, they had a legal right to institute it, and where a person has a legal right to do a thing, the law does not concern itself with the motive with which he does it. Whether there was probable cause for instituting the prosecution was, therefore, the most important inquiry in the case. Upon this question, the plaintiff's testimony tended to show that he had for several years done business as a dealer in liquor under the name of C. Meysenberg & Company; that he had been a constant customer of the Excelsior Distilling-Company; that he had bought goods of them to the extent of from $600.00 to $1,200.00 per month, giving his note for thirty days at the end of each month for the aggregate value of the goods purchased during that month; that, on or about the 1st of May, 1883, having a note of over $700.00 in bank, given by him to the Excelsior Distilling Company for goods of the previous month, which note would mature on the 5th of May, he applied to the Excelsior Distilling Company for a loan of $400.00 to use in taking up this note; that this loan was made to him in cash by them and was so used by him; that for this loan he gave them his promissory note for $400.00, .maturing at thirty days, which note was never paid; that on the 4th of May, he sent his porter to the Excelsior Distilling Company for three barrels of whiskey, which were furnished to him in the ordinary course of business, as they had often done before; that at the time this money was advanced and these goods sold to him, no special representations were made by him to the Excelsior Distilling Company, touching his financial condition; but that a month later he was obliged by his brother, T. A. Meysenberg, who had furnished him with the capital with which to carry on his
If the plaintiff’s testimony was true, the $400.00 which, was advanced by the Excelsior Distilling Company to the plaintiff was merely in the nature of a renewal of that much of his existing indebtedness to them, and the three barrels of whiskey which they sold to him at the same time, they sold to him in the ordinary course of their dealings with him, and in consequence of the general opinion of his solvency, obtained from the fact that he had been in.the habit of meeting his obligations to them previously; and, consequently, there was no probable cause furnished by these transactions for instituting a criminal prosecution against him for obtaining money and goods under false pretenses. On the other hand, if the state of facts which the defendant’s testimony tended to prove was true, there was such probable cause.
4. This brings -us to the next substantial question, namely: Whether the case was properly put to the jury. It is often said in the books that, in actions for malicious prosecutions, the question whether there was probable cause for instituting the prosecution is a question of law for the court. This proposition does not mean that it is the province of the court to decide upon conflicting evidence Whether there was, or was not, such probable cause, but that where the evidence is not conflicting, or where the facts are conceded, it is the province of the court to tell the jury whether the facts do, or do not afford such probable cause. Where, as in this case, the evidence as to the facts is conflicting, it is the duty of
5. The court refused to give to the jury several appropriate instructions submitted by the defendants, as to what were the ingredients of the offence of obtaining goods under false pretenses under the law of this state. The court, therefore, not only submitted to the jury upon the whole case the question whether there was or was not probable cause for instituting the criminal prosecution, but refused even to define to them the grounds on which such a prosecution may be lawfully instituted, although requested to do so by the defendants. By thus refusing to give the jury any special guide by which to determine this question of law, the error of submitting it to the jury became the more palpable and the more obviously prejudicial. Nor was this error cured by that part of the instruction given at the request of the defendant, “that by the words, ‘probable cause,’ as used in the instructions of the court, is meant a belief by the defendants, or either of them, in the guilt of the accused, based upon circumstances sufficiently strong in themselves, to induce such belief in the mind of a reasonable and cautious man.” If the court had instructed the jury properly upon hypothetical facts submitted to them as to this question of probable cause, the general instructions submitted by the defendants as to what constitutes the obtaining of goods under false pretenses, would have been properly refused.
6. It is perceived that these two rulings present for determination a very peculiar question, namely, this:
We, therefore, think that for this error we must reverse the judgment and remand the cause. It is so ordered.