67 Mo. App. 582 | Mo. Ct. App. | 1896
The plaintiff, a married woman, pending her appeal from a decree of divorce in favor of her husband, purchased of defendants goods for the price of $17, and had them charged to her husband. The goods were sent-to her residence on the next day. On the day following their delivery defendants’ superintendent demanded the price of the goods or their return, “threatening in default of either that he would “take her body.” Upon her refusal she was arrested and imprisoned by defendants on a charge of obtaining goods under false pretenses. Upon her acquittal of this charge the present action for malicious prosecution was brought, resulting in a judgment in her favor for $250, from which this appeal is taken.
Ten other points made by defendants are addressed to the instructions given for plaintiff and refused to defendants. A careful examination of these instructions, which are too numerous to be set out, discloses that those given for plaintiff are sustained by the recent opinion of this court (Engleton v. Kabrich, No. 6398) and those refused defendants are covered by those given for the parties and of the court’s motion, except instruction number 8, requested by defendants. This instruction omits to state whether defendants inquired of Morris Rosenfeld or examined the records of the divorce suit to see whether an appeal had been taken in that case, which in the exercise of reasonable care it was ■ their duty to do. It thus omitted essential elements of probable cause as a matter of law, and hence was rightfully refused. It only remains to inquire whether the one given of the court’s motion was proper. By that instruction the jury were told that the appeal of plaintiff from the decree of divorce against her in the circuit court suspended the operation of such decree during the pendency of her appeal. Defendants urge that this proposition is incorrect,