Sanders v. Daniel International Corp.

opinion and general order because of the I Count was well within limits of that section, importance interest and questions involved. Affirmed.

II.

I. Appellant argues punishment his should Appellant argues have been assessed in the sentence of twelve stead years (his punish for of the court. Because his Count I second offense for 195.200.1(2), ment possession subject was to section marijuana, drug) a Schedule I punishment was assessment of was for unauthorized Missouri’s under Narcot- court, 195.200.6, Drug Act, jury. Penalty 195.200.1(l)(b), ic RSMo section Supp.1984. provides RSMo which for a maximum years

sentence of five “for the second and Judgment is affirmed. subsequent possession offenses [of] marijuana.” Although a sentence All concur. years permissible twelve is not under sec- 195.200.1(l)(b), is it authorized under 195.200.1(2) provides section years

term of not less than five nor more imprisonment life than the second “[f]or offense under chapter ^[195] relating except provided Schedules I or II [195.200.1(l)(b) ]....” SANDERS, Respondent, Robert A.

Appellant argues section 195.200.- 1(2) inapplicable 195.200.1(l)(b) applicable possession when the marijua DANIEL INTERNATIONAL na is the charged prior crime and a convic CORPORATION, Appellant. possession tion for marijuana exists. No. 65529. Perhaps persuasive glance, first this ar however, gument practice, would lead to Missouri, Supreme Court unfavorable results. When an offender En Banc. prior has drugs, for other convictions in 18, 1984. Dec. cluding marijuana, ignore should court prior except those convictions for the mari

juana and allow the offender to receive the penalty only prior

same as a whose marijuana possession? offense was This of applying would be the effect section 195.200.1(l)(b). legislature should not held to have such an intended undesir able result. The Court holds therefore that 195.200.1(l)(b) applies only

section when an drug previous offender’s convictions were possession marijuana. Appellant prior has conviction of a substance, pentazo- Schedule IV controlled drug prior cine. Because his conviction (in drug marijuana for a than prior marijua addition to a conviction for na), 195.200.1(1),(2) applies, section and the

twelve-year he received under sentence pro- insufficient evidence existed to Respondent

ceed with the trial. then filed this action for malicious

I filed,

At the time information was appellant engaged in the was construction plan in power Callaway of a nuclear Coun- ty, Company. Missouri for Union Electric required project The construction more 2,700 workers, company than and the had working night day crews and shifts. Union Electric tools job, owned all the used on the pursuant appellant and contract a was responsible pur- for and controlled the chase, allocation and use of all the tools. bring The individual workers did not their job own tools is- Appellant onto the site. worker, sued individual tool boxes to each keep and the workers allowed were their larger “gang tool assigned boxes boxes” to each kept crew. The crew foreman each gang box locked. Additional tools could Burruss, Jr., John E. Lowry, J. Kent checked out from a “tool room” and were City, appellant. Jefferson to be returned tool to the room at the end day. Callahan, Miller, Richard G. Charles R. City,

Jefferson for respondent. Prior to tool December theft and hoarding recurring tool been a had WELLIVER, Judge. expensive problem. Posted on the fence surrounding signs job site were warn- This case prosecu- involves a malicious caught persons removing tools brought respondent, tion action Robert project subject prose- from the would trial, jury A. Sanders. At returned a security per- cution. furnished Pinkerton verdict favor of respondent, awarding sonnel $100,000 perimeter to control access to the damages $250,- him in actual job site. punitive damages. We ordered the cause transferred after the Southern Dis- Respondent of a was a member Crew judgment. trict affirmed the We reverse night-shift pipefitting consisting crew aof and remand. eight foreman and crew members. On the prosecution forming 20, 1978, criminal morning day-shift

The the ba- of December a pipefitting crew, for this reported sis action Crew to work respon- gang a was misdemeanor case which and discovered that its box had been charged attempted gang was theft broken on the dent into. The lock box had gauges fifty over pair of tools valued dol- been cut with a bolt cutters. Respondent per- quick investigation one of lars. seven revealed that a member Groves, charged crime. with that The infor- Crew Gus had sons checked out prosecutor was sworn to bolt cutters tool room on mation following previous presence in his night. Superin- a conversation office with In the Heers, agents appellant, Terry security guards International tendent Daniel opened gang Corporation. prosecutor dismissed the the Crew 52 boxes with a top key. gang he master At the of one of misdemeanor action because believed examining welding a set of “malice.” involves gauges, boxes was This wheth- (1981) correctly had recently. hoses of which been cut er MAI defines mal- 16.01 matched the other These cuts ends of the a MAI 16.01 ice for malicious gang remained in the provides, part, doing hoses that Crew 5 that malice is “the present box. in a gang Also Crew 52 box wrongful just act welding pair belonging was a leathers cause or Also involved a deter- excuse.” of Crew 5. member this same mination of whether instruction instructing should be used when inventory directed that an Heers be made punitive damages involving in a case gang tools in the Crew 52 boxes. malicious prosecution. gang and the boxes individual tool inside the gang boxes that were boxes Actions for malicious emptied all of were the tools of a never been of the law. There is favorites particular put pile kind were for inven- agreement almost universal sound tory purposes. Some of the in the tools public policy dictates that the law should gang boxes were individual tool boxes encourage uncovering and and not. some were “policy discourages Any of crime. that reporting aiding citizens crime Next, Heers discussed the situation with prosecution would be undesirable and detri Manager Gary and with Service Warblow Cates v. general.” mental to Manager society Project Sykora. Assistant Wallace Eddy, 912, (Wyo.1983). They P.2d 917-18 go to the sheriffs office to 669 decided always recognized problem. The sheriff sent War- Courts have that discuss “[m]al- office, prosecutor’s blow to the icious is an action which tends and Heers they Callaway County public policy encouraging with dilute where met knowledge possible Hamilton. Hamilton tes- persons having Prosecutor Gene initially public tified and Heers cooperate that Warblow crimes to officers.” Cooperative Seelig Society, v. Harvard possibility asked him of search 1 about 341, (1973). See Mass.App. warrants for the houses seven members 825 296 N.E.2d Grocery 52, Kroger Baking & and he told them that search also Bonzo v. Crew (1) Co., possible (1939); 127, were not because 75 warrants 344 125 S.W.2d Mo. Callaway Bargain Muza v. Lumber people seven resided outside of 586 Cash 403, (Mo.App.1979). would limited to na County and the warrant 406 (2) showing action, therefore, county; there was no has ture this cause plant proof taken from the require tools had been led strict of each courts to actually Green, Judge in their element of the tort. See were located L. also no cause Higgins Jury (1930). He said that houses. 338 Realty After a Knickmeyer-Fleer Investment to search their houses. existed 1010, (1934); lasting approximately a half 805 conversation 335 Mo. 74 S.W.2d Warblow, Karchmer, sugges- (Mo. hour, at Hunter v. Heers and 285 S.W.2d 918 App.1955); Bellington v. attorney, signed Clevenger, prosecuting 228 tion of the respondent. In against (Mo.App.1950). Ham- a federal complaint S.W.2d 817 blank upon example, which opinion, an information circuit Justice ilton then filed court Washington Febru- was issued. On noted that: trials of ac arrest warrant “[i]n 1979, nature, 15, ary Hamilton dismissed tions of this it is of infinite conse against precision, charges quence Sanders. mark with the line to justify law will

II him if going, punish goes he be Nemours, Munns v. De it.” yond Fed. number of issues raises a Appellant 993, (No. (C.C.D.Pa.1811) 9,926). Cas. appellant’s appeal. First, must address Virginia Supreme recently Court estab- es failed to argument respondent attitude when it poused mali- this same held that tort of lish elements all of the been requisite such actions “have circumscribed particularly cious prosecution, stringent limitations more ap degrees than those of malice as well as the nature plied to most other tort actions.” Bain v. going prove of the evidence its exist Phillips, 387, Horne, 576, Va. ence.” Griswold v. 56, 165 S.E.2d 19 Ariz. (1976). Numerous Indeed, commentators also have P. one eminent expressed sentiment, this including Lord scholar commented that the term is so Holt more years than a hundred ago, “slippery” Mar that it should be banished from tin Newell at Ames, the turn of the century, and the law. May “How Far an Act Be Prosser and during Keeton Wrongful our own era. Tort Because of the Motive of See N. Newell, Actor,” Newell on Malicious Prose 18 Harv.L.Rev. 422 n. 1 (1892); cution 21 Keeton, and, W. Prosser & W. We have retained the term surprisingly, Prosser & Keeton on the the different Law of Torts kinds and de 870-71, grees of malice have often been confused See also Stewart v. Sonneborn, throughout development 98 U.S. of the law in 8 OTTO (1878), L.Ed. Missouri. The Alexander v. Petty, result that we now utilize single highly definition of malice Del.Ch. and it is Miller A.2d questionable whether it v. Pennsylvania properly R. describes 371 Pa. either the required to sustain Penton A.2d a mali Canning, Wyo. required cious or that to sus P.2d punitive damages tain prose Malicious Prosecution Am.Jur.2d 187-89; cution. 54 C.J.S. Malicious Prosecution § 3, at 954. We public believe that general, In recognizes the law three policy coupled with current crime rates degrees First, of malice. there is malice in mandates that we reexamine the element its universal sense as in understood the of malice in a malicious as it is mind, popular will, spite, which means “ill defined present for the in our MAI hatred, personal or vindictive motives.” 16.01. Peasley Puget Co., v. Tug Barge Sound & 485, 681, (1942). 13 Wash.2d 125 P.2d suing theory on a of mali

A Such malicious conduct is in ill cious founded plead prove six will, (1) by “and is attempt evidenced an elements: the pros commencement of a vex, injure, Davis v. annoy or another.” against plaintiff; (2) ecution the the insti Hearst, 143, 116 gation 160 Cal. P. defendant; (3) the the termina also See C.J.S. Malicious Prosecution tion of proceeding the in plain favor of the § 41, tiff; (4) type at 1004. This of malice is com the want of cause the monly prosecution; (5) referred to as “malice in fact” or the defendant’s conduct “actual malice.” by malice; (6) actuated plain damaged. Greenleaf, tiff was S. II Green degree A second of malice is malice §§ (2nd leaf 1844). on Evidence ed. legal in its legal sense. The definition of Muster, See also v. 582 S.W.2d Stafford malice has a meaning broader than the (Mo. 1979). banc We focus our popularly understood definition of malice attention on the fifth and crucial element enlarged legal fact. Malice in its sense malice; and, justi because malice also any improper embraces wrongful or mo award, punitive damage fies a we must is, malo animo. tive—that See S.S. type address connection between of Kresge Ruby, Co. v. 348 So.2d necessary malice liability to establish (Ala.1977); Brodie v. Hawaii Auto Car necessary that which is to sustain an award Ass’n, Deal. App. Hawaii 631 P.2d punitive damages. (1981), rev’d on grounds, other culpable The word “malice” connotes a Hawaii 655 P.2d 863 Owens state, Kroger any mental the term (Miss.1983); lacks uni- 430 So.2d 843 opin- Peasley Puget form definition. In Tug Sound a well-researched Barge ion in Supreme Arizona 125 P.2d generally See Court at 689. § “[tjhere are different kinds C.J.S. Malicious Prosecution observed that at 1004. Horne, supra, Griswold legal Some courts also included within P. at 323. unrecognized An all-too-often difference malice is conduct which so reckless or wan type of in law exists between this malice tonly willfully disregard of one’s legal in its sense. former and malice rights that a trier of fact could infer from legal upon presumption independent rests such conduct bad faith or malo animo. concerning any proof a defendant’s men- e.g., Neilson, See Richter v. Cal.App.2d state, requires tal while the latter either Hugee Pennsyl P.2d 54 proof indirect of a direct or mental state vania R. 376 Pa. 101 A.2d 740 culpable less than malice in fact. somewhat Williams, Lewis v. S.W.2d 299 Friedman, generally L. Frumer & M. See (Tenn.1981); Seefeldt, Yelk v. 35 Wis.2d Injury 4E at Personal 1.02[3] Although N.W.2d he weight authority clearly indicates law”, incorrectly termed it “malice New- a malicious action can aptly ell type defined this of malice as supported only actual either or something less than in fact and malice. Malice insufficient. “simply general ... wickedness intent must establish that part person; depraved of a inclina plain- with ill toward acted either harm, disregard do or to improper tiff or from motive. safety generally.” of mankind W. New general agreement Treatise writers are in ell at that, least, very improper Holmes, wrong is essential. Justice motive Third, there is “malice law.” example, upon commented the relevan- degree properly This of malice is defined as cy of a defendant’s moral condition such wrongful act done suits: generally just cause or excuse. Such a limitation would stand almost § 42, Malicious Prosecution C.J.S. at 1005. liability. alone in the law of civil But wrongdoer imputes The law malice “to a and, wrong peculiar, nature of doing mere from the intentional of a moreover, quite it is consistent with wrongful injury another act to with it theory liability here advanced that or excuse.” Freezer legal justification out any given be confined in instance should Miller, 180, 159, v. 163 Va. 176 S.E. 168 wrongdoing in a moral sense. actual White, 122 Connelly also v. See Holmes, The 113 Common Law Tradition 391, 144, Iowa 98 N.W. 145 For (M. 1963). ed. Over one hundred Howe example, later, years Prosser and Keeton wrote: perfect stranger gives one unaware [i]f proving plaintiff burden of has the weapon likely deadly a blow proceed- defendant instituted the that the death, malice, produce he it of does be- “maliciously.” This unfortunate intentionally it without cause he does word, kin- has much vexed the so just legal If he maims cause or excuse. defamation, requires less law of no dred are, knowing cattle without whose way here. It means definition drinking if he a well of water poisons something more than the fictious “malice knowing likely to drink of who is in def- developed which has law” been malice, it, is a he it of because it does cases as a cloak strict liabili- amation wrongful with- act and done ty. There must “malice fact.” At be justification or any legal excuse. out necessarily time it does not the same law —a malice of This is the malice by was inspired mean that necessary by proof made pleading and will; hatred, spite or ill there is against the or of offenses definitions authority purpose that if his was other- It is estab- exigencies one, of the case. proper the addition of the wise presumption, legal by indignation lished a conclusive fact that he felt incidental plaintiff re- proof of in fact not toward the will not malice resentment him liable. As the cases of quired. make

809 qualified privilege defamation, Virginia has also held that “[t]he courts seem to have looked pri- to the which is an essential element of an action mary purpose behind the defendant’s ac- for a malicious actual mal tion. If he is found to chiefly have acted ice, fact, or malice in and its existence must give will, vent to motives of ill “mal- other fact.” Freezer v. proven ice” is established. But it is found also Miller, supra, 176 S.E. at 168. The court primary where his purpose merely further defined actual malice as “malus something other than the social one of animus, i.e., wrong purpose.” motive or bringing justice an offender to ... Id. 176 S.E. at 169. With the exception Keeton, supra, at 882-83. W. Prosser & W. courts,1 all including but a few state Mis expressions Other similar may be found souri, overwhelming majority of deci concerning required type of malice. require sions ill improper will or some Ordinarily, in order to constitute malice wrongful e.g., motive. National Se supporting an prose- action for malicious curity Bowen, Casualty Fire & Co. v. 447 cution, animus, there must be malus de- 133, (Ala.1983); So.2d 140 Griswold v. noting that the who instituted the Horne, supra; Raboff, Albertson v. 46 original proceeding was actuated 375, 405, (1956); Cal.2d 295 P.2d Su 410 wrong motives. Stiles, chey 363, 739, 155 Colo. 394 P.2d Ford, Inc., (1964); 741 54 C.J.S. Malicious Smith v. Globe 42, Prosecution 27, See also T. Conn.Supp. 1262, 1004-05. Cooley, (1983); 467 A.2d Treatise on (1879); Inc., A Stidham v. Diamond Pollock, Law of Torts 184 Brewery, State F. Torts, 183, 330, 283, Treatise on (1941); the Law of Del. A.2d Am (1894); 52 Newman, Am.Jur.2d Malicious Prosecu- merman v. 637, 384 A.2d § 46, (D.C.1978); at 214. These Erp Carroll, authorities illus- 438 So.2d will, trate that ill spite while hatred or 40 n. 3 (Fla.App.1983); Iowa Mutual Ins. necessary to establish the cause of Heating Refrig. Co., Co. v. Gulf action, prove Brodie v. (Fla.App.1966); So.2d defendant was at least actuated im- Ass’n, Hawaii Auto Ret. Gas supra; Deal. proper wrongful motive. Nathan, Berlin v. Ill.App.3d (1978); Ill.Dec. 381 N.E.2d Decisions from numerous state courts Peat, Carbaugh Ill.App.2d are no less asserting forceful in that more Koplow, Satz v. N.E.2d than malice in law is needed to establish Foltz v. (Ind.App.1979); N.E.2d elements of a malicious Bock, Illi 89 Kan. 131 P. 587 require malice, Some courts actual while Anderson, nois Central R. Co. v. Ky. other courts hold that malice in its 268 S.W. O’Connor sense is sufficient. Supreme The Arizona Dept., Hammond Police 558, Court has held that “in 439 So.2d 561 this sort of action it Co., Kroger Coleman (La.App.1983); v. absolutely is essential to its existence that 1186, 1189 371 Glover (La.App.1979); So.2d distinguished malice fact as from malice Horne, Fleming, Md.App. v. 381, 981, present.” 36 Griswold v. law be 373 A.2d DeNike, (1977); Sottile v. Mich.App. 165 P. at 983 323. The North Dakota 20 468, 174 Supreme (1969); Owens v. Kro legal Court has held N.W.2d 148 that malice is Co., ger action, 847; Harvill v. support Tabor, sufficient to at and then it legal 750, “any unjustifiable 863, (1961); defined malice 240 as Miss. 128 So.2d 864-65 Jones, Watkins, motive.” Kolka 461, v. 71 Miller v. 126, 6 N.D. 653 P.2d 131 558, (1897). Miller, (Mont.1982); Hackler v. highest N.W. 562 court of 209, 79 Neb. 114 Valencia, 174, problem See (1922); v. 28 N.M. 210 P. 225 pres- law standard indicates a similar Meraz Guaranty Corp., Brown v. ently Estates 239 before this Court. Standard v. A.F. Cf. 595, 645, (1954); N.C. 80 S.E.2d Eaves Co., 651 v. 449, Grocery Messick 143 N.C. 55 S.E. 815 Inc., 475, Cooperative, Broad River Elec. 277 S.C. Telech, (1906); 232, Margolis v. 239 S.C. 122 414, (1982). S.E.2d 416 of 289 An examination S.E.2d 417 opinions adoption these their of malice in 810 (1907); City (2) Martin v. Alba purpose,

N.W. 274 it must have been an ny, 13, 1304, 42 improper N.Y.2d 364 N.E.2d one. 396 Barbera, (1977); Rogers v. N.Y.S.2d 612 Gilligan, 131 176, Jenkins v. Iowa 108 241, 162, 170 Ohio St. 164 N.E.2d 165 (1906) (citations omitted). 237, N.W. 238 In Stores, Inc., Fleet v. May Dept. (1960); 262 short, the conduct be such that a 592, 1054, (1972); P.2d Hugee Or. improper and find an could infer motive. Pennsylvania supra; Curley v. R. v. opined “[wjhile Another court it is a 280, Automobile Finance 343 Pa. disregard fact that a willful wanton (1941); Nagy McBurney, v. A.2d 48 malice, may the fact be the basis for such 365, R.I. 392 A.2d 367-68 wanton and willful conduct must be of such Harberts, Huntley v. (S.D. 264 N.W.2d 497 evince a as to hos a nature and character Cross, Stringer 1978); v. S.W.2d v. tile vindicative motive.” Yelk See (Tex.Civ.App.1978); Creelman v. Sven feldt, supra, 151 N.W.2d at 8. (Emphasis ning, Wash.App. 461 P.2d added). deemed The defendant’s act is im Filling Co. Du Consumers Station v. proper the defendant is conscious because rante, Wyo. 237, 333 P.2d 699-700 ly doing society an act which he knows Ewald, v. Meyer 66 Wis.2d regards reprehensible. opinions, These as also See N.W.2d Ga.Code therefore, requisite demonstrate that 51-7-2 legal malice is established when defend willfully proceed ant institutes criminal of these courts hold that mal- Some ing while conscious that such an action is encompasses ice also conduct wrong or unlawful. The defendant must done, “wrongful willfully with a con- proceed improper wrong either with an according that it sciousness is not to law consciously ful act with motive or such duty.” Wiggin Coffin, 29 Fed.Cas. v. disregard wanton others (C.C.D.Me.1836) (No. 17,634). not, infer jury may, that a but need from Dietrich, also Lunsford 9 So. improper such motive. conduct Carter, (Ala.1891); Nyer v. 367 A.2d weight Contrary authority, Mis Jones, supra, (Me.1977); Kolka souri has retained a malice law standard Telech, 562; Margolis supra. 71 N.W. for the definition distinguish type must be taken to Care actions. “The element mal negligence: from of malice defined ice malicious neg- distinguishable Malice is from mere doing wrongful act the intentional of a in that ligence it arises absence legal justification. It be in negli- purpose. characteristic of probable cause ferred from the absence of gence is inadvertence or an absence of an necessarily hatred or and does not involve injure. not imply intent to This does Maddox, Parthenopoulos ill will.” involuntarily or uncon- the act was done See also (Mo.App.1981). S.W.2d sciously, merely do- Bargain Muza v. Cash Lumber act ing it was not conscious Palermo v. (Mo.App.1979); care. constituted want reasonable Cottom, (Mo.App. 525 S.W.2d act becomes mali- so conscious the If 1975). essentially This is the definition agree prosecu- that the The books cious. found in MAI 16.01: prompted need not have been The term [“malicious”] [“mali- [“malice”] corrupt design, nor or malevolence in instruc- ciously”] as used this [these] spite or hatred to- necessarily involve hatred, spite not mean or ill does tion[s] enough is if It accused. the ward understood, will, commonly but means as any improper sinis- or the result of it be wrongful doing intentionally a the act disregard of the and in motive ter or just cause excuse. without ..., willfully if done and or has and Although malice Missouri dubbed titled ... But to constitute purposely malice,” in (1) “legal it is a or this definition fact been motive there in what have described law. cious action was a com- as “malice jury law, require The instruction does not the in fact and in bination of malice malice the permitting recovery find that defendant an im- thereby acted with to be based proper purpose. Indeed, nothing lesser, is malice in this the law. The instruction generic more than common definition of was as follows: an tort: intentional malice; in two kinds of malice There are general former, fact, ais rule of the malice in The in common law law.

[i]t acceptation, a cause of action arises whenever common means ill-will person, by person; latter, wrongful against one act not in the exercise a If, therefore, right, intentionally. of a lawful causes loss or does act done damage intent, to another from jury with an either believes the evidence that constructive, or produce actual such caused to be arrested harm, just ..., larceny without excuse or lawful and that the defendant justifiable against cause or occasion. thereto was moved ill-will plaintiff, or that was § Am.Jur.2d, Torts at Prosser 635. wrongfully instituted the defendant explain and Keeton that this definition was jury plaintiff. must find for the ... for use in intended such cases where a Palm, supra, was intended. Hill liability” for strict in v. The Hill “cloak at 15. Keeton, supra, Sharpe John & at v. W. Prosser W. 882. struction followed in was ston, examples Sharpe, (1875). The are two defamation suits and In Mo. false imprisonment.2 “[mjalice suits for arrest or was instructed that means Supreme appro wrongful The Minnesota has Court act done le noted priately gal justification which is 571. Id. malice excuse.” at “[t]he prosecu the essential element of malicious early these cases erroneous- Court not, libel, like tion is the malice essential ly the definition malice assumed slander, imprisonment, and false a mere could cases be culled defamation law; it is a state mind to fiction of the served as a strict where malice cloak for proven as a v. Hanowitz Great fact.” only liability. supporting citation Ry. 241, 142 Northern Minn. N.W. instruction in Goetz is circuit to a federal (1913) (emphasis added). Not sur Ambs, supra, at Goetz v. opinion. court therefore, states, prisingly, includ few however, decision, Jus- 33. In federal Missouri, adopting this malice crimi- Story interpreting tice a federal standard for malicious actions statute, heavily upon nal and he relied singled out for criticism. have been Prosser, language Bromage v. 4 Barn § 42, Prosecution, C.J.S. Malicious at Taylor, United States v. C. 247 Miller, v. 1005; supra, Freezer S.E. at 16,442). (D.Mass.1837) (No. Fed.Cas. 31 8.n. Bromage involved defamation action implied Judge Bayley The malice in Missouri held that malice was law standard decisions Goetz traced early publication can be to two from the false words Ambs, Palm, v. (1858) involving privileged v. and Hill 27 Mo. 28 communica- case not Prosser, Bromage awarding 256. Goetz involved tions. at 38 Mo. case, damages slanderous, punitive in an the matter assault “[I]f equated implied, prove publication; intention- sufficient to the Court malice with an it is Ambs, party publishing In nev- al tort. Goetz the motive of are Hill, into.” Id. at 256. reasoning gone According Court without dis- er approved Bayley, type in a of malice an instruction mali- was defined cussion Prosecution, Adams, (Mo.App.1974); generally Harper, S.W.2d 159 McGill "Malicious 2. See Defamation,” Imprisonment 15 Tex.L. Realty Mo.App. False v. Walnut Malicious 54 C.J.S. Rev. Ullrich S.W.2d 131 v. New York Press e.g., Griswold at 1004. See Prosecution Misc.Rep. N.Y.S.Supp. Hearst, Home, supra, supra; Hudson v. David v. Garner, (1856); Helming Mo. 812 Co., (Mo.App.1982); Hupp wrongful act,

“a intentionally, done with- 642 S.W.2d 665 just out Inc., Id. at cause or excuse.” 255. In Lincoln-Mercury, v. North Hill 610 Sharpe, prevailing party supported the Muza v. Cash (Mo.App.1980); 349 S.W.2d Buckley malice by a instruction citation to Co., Bargain supra; Palermo v. Lumber Knapp, v. Sharpe 152, (1871). 48 Mo. 158 Cottom, supra; Boquist Montgomery v. Johnston, v. Buckley, at 561. how- Co., & (Mo.App. Ward 516 S.W.2d 769 ever, involved the same kind of action as Co., 1974); Kroger Witt v. 15 392 S.W.2d Bromage and the Court malice affixed (Mo.App.1965). publication where a mere of there was however, opinions, suggest Some that Knapp, at 161. See false words. state of mal mind embodied Dispatch, also Barber v. Louis 3 St. Post required to ice standard is establish liabili 377, (1877). Mo.App. 386 ty A number of malicious involving The majority of Missouri cases suggest plaintiff implicitly cases that merely recite that the defendant was ac establish describing malice in law standard without improper ill or any tuated either of the state mind sufficient to sustain the Inc., e.g., motive. See Randol v. Kline’s North, e.g., action. See Burris v. of cause 746, 500, (1929); Mo. 322 18 S.W.2d 507 (1877); v. 426 Callahan 640 Mo. Caffara Chouteau, 577, 138, Peck v. 91 Mo. 3 S.W. ta, v. 136, (1866); Brant 39 Mo. 143-44 Howard, Mo. 25, (1887); Stocking v. 580 73 (1847). Higgins, Mo. opinions 10 451 Mu (1880); Pritchett v. Northwestern 27 generally acknowledge malice is an 661, tual Ins. Mo.App. 228 73 Life e.g., tort. See essential element (1934); Van Nort v. Van 819 Bieber, (Mo. Frampton v. S.W. Nort, (Mo.App.1929); 16 S.W.2d Johnston, 575; 1918); Sharpe supra, at v. Hanna, Christian v. Mo.App. Casperson Sproule, v. 42-43 Mo. Lippincott, 39 Mo. (1894); Trauerman Byrne, Lalor v. Mo.App. Turner, Staley v. App. 486-87 (1892); McGarry v. Missouri Pacific Meysenberg Mo.App. 244, Ry. Mo.App. (1889). They Engelke, Mo.App. of frequently most find malice in the lack opinion suggests that is estab One malice actor’s probable cause rather than in the recklessly, defendant acts lished when the e.g., Associ mind.3 See Hoene v. of state gross disregard unreasonably Dry Corp., ated Goods 487 S.W.2d Keenoy v. Roebuck & one’s (Mo.1972); instituting proceeding. Sears when proba- plaintiff ed the of behind these decisions is that 3. rationale probable cause. the facts which establish lack of ble J., (Linde, jury concurring). may infer- See allow the to draw the Id. P.2d cause also at (12 Pick) culpable Noyes, that the defendant had a mental 29 Mass. ence also Wills Sears, suggest e.g., Lambert v. Roebuck of Missouri cases state. number may Unfortu- lack of Or. malice be inferred from a 280 nately, 570 P.2d however, cause; opinions, probable of surrounds do not certain amount confusion these may may accurately inferred from be the statement that "malice be malice reflect the cause,” probable Linde of lack of as Justice the lack which establish inferred from the facts Oregon explains: Supreme Court probable cause: inference of law from the is not an [M]alice may I have no that the same evidence doubt however, Malice, probable cause. want probable cause prove lacked that a defendant positive proved direct and need prosecute acted with and also testimony, may facts be inferred from the proposition malice. But it is different go probable to establish the want jury may the lack infer “from cause; it is is all that meant when cause,” and this probable the latter conclusion when may be from the said that malice inferred may causes such as arise from non-malicious probable want of cause. negligence. phrasing [that While second Johnston, supra, Sharpe See also 575-76. may probable cause be sufficient lack therefore, Hanna, We, infra, at may originated Christian v. malice] evidence first, "elliptical” discourage using merely courts elliptical for the its shorthand phrase a want that malice inferred from find “malice" effect to invite cause. find that the initiat- whenever Q.R. Chicago, Co., requisite Foster v. B culpable & 321 Mo. mental state. In the 14 S.W.2d past jury has been told that “wrong- exists when the does a courts, Our having after the case sub just ful act cause.” mitted on MAI predeces 16.01 or one of its “wrongful just The act” “without cause” is sors, many justified instances have committed when the defendant acts with- finding jury by saying of the that the lan cause, probable entirely separate an out guage in MAI commonly 16.01 reflects the All element of the tort. that has remained expressed definition of willfulness. In a jury for the to determine is that the defend- interpreting phrase case “the intention “intentionally.” jury sug- To ant act doing wrongful al of a just act without gests, respondent argued counsel excuse,” cause or explained Court that closing argument, that the initiation of the “intentionally the term done” refers to the prosecution was “not an accident.” This fact that the “defendant knew that it was recognize fails to the distinction between wrong, knew that he just had no cause or intention and malice. Intention refers to doing, excuse for so and hence did it will the defendant’s intent to commit the act fully wantonly and in reckless disre e.g., which causes the harm. See Cover v. gard party.” of the other Co., Phillips Pipe Line 454 S.W.2d Co., McNamara v. St. Louis Transit (Mo.1970). type of intent em- Mo. 81 S.W. This concept quite braced in the of malice is interpretation same language different: MAI 16.01 exists in numerous other cases. The tort of malicious e.g., Phillips Co., See Jones v. Petroleum wrong, only intended not the sense (Mo.App.1945); Pritch defendant, by that the his deliberate and Co., ett v. Northwestern Mut. Ins. Life act, voluntary plaintiff’s invaded the in- supra, 819; 73 S.W.2d at Christian v. terest in the sense that Hanna, 43; but he intended supra, at Lip Trauerman v. wrongful result. This means that he pincott, supra, concept at 486. The must have committed the acts com- willfulness properly cannot be read into the plained primarily purpose for the language in post MAI 16.01 trial because harming plaintiff. nothing in requires the instruction that the willfully. defendant act generally See James, Jr., Harper P. & F. I The Law of Miller, Freezer 176 S.E. at 168- § 4, at 320 Torts There must be construing language Decisions merely intent to cause the harm and not MAI 16.01 to compo include a willfulness commit the act the harm. which causes nent seem all the questionable more place premi- The effect of MAI 16.01is to light suggesting of other cases um on the absence cause there- legal purportedly malice standard reflected fiction, by relegating legal malice to a mere in the require instruction does not presumption. inference or This is willfully wantonly. defendant acted See contrary weight authority to the and we e.g., Brown v. Moving Storage Sloan’s & prior believe was intended our never (Mo.1956). 296 S.W.2d decisional law. misleading case at bar leaves us no MAI 16.01 is further because clarify hatred, choice element of malice it states that malice “does not mean Hatred, in malicious In spite spite actions. so do or ill ill will.” or will is misunderstanding necessary we resolve the malice in establish fact. Even plagued many rejecting standard, has this state’s law for courts malice in fact however, longer good hatred, years. spite We can no con hold that or ill will necessarily proven. science sanction the use of MAI 16.01. The does not have to be e.g., Lampert reflects a definition of malice in Judge Dolph instruction Drug not indicate to the and does Mo. S.W. Cottom, 765; had to the defendant have acted with the Palermo v. Mo.App. Beatty v. Puritan Cosmetic appellant act- determine whether or Christian degree necessary S.W.2d 191 ed to with the of malice 158 Hanna, v. supra, at 43. Iowa See also Zimmerman sustain cause of action. the Heating Refrig. Mutual Ins. Co. v. Corp., 444 v. Discount Associates S.W.2d Gulf Co., (Pla.App.1966); 706 So.2d (Mo. 1969). banc Co., Grocery v. A.F. Messick su Stanford Harberts, pra, 817; Huntley 55 S.E. Ill By informing jury at 501. the suggest that MAI 16.- Two reasons hatred, spite malice does not mean ill or longer 01 can be used to instruct the no informing the jury will instead of that mal damages in a jury punitive on malicious necessarily hatred, ice does mean First, prosecution MAI 16.01 is action.5 spite will, goes step ill MAI 16.01 one inadequate jury to instruct even suggesting to jury further a that mere liability. high required state for mental subsequent intent to do an act that degree required be to er of malice should ly wrongful is classifies as sufficient. Second, justify damages. punitive Liberty In Haswell v. Mutual In weight authority indicates that actual of Co., 557 S.W.2d 628 (Mo. surance banc something malice akin to actual malice is 1977), adopting this Court discussed necessary justify punitive generally to a of mali Restatement definition malice for damage prosecution in malicious award prosecution proceedings. of civil The cious cases. passing years, increasing problem ever crime, effectively carry law, for of and the need Under current Missouri policy urging of public out the citizens liability in a malicious law standard for to in the of crime now aid satisfy type to prosecution also is used a that we reach different result mandates necessary punitive damages. for conduct prosecution ac respect with to malicious Co., Mo.App. Transit Ruth Louis St. arising proceeding. a tions from criminal Carp (1903), S.W. (Second) The of Torts Restatement Queen Ins. 203 Mo. S.W. (1965) provides: subject “To a (1907), actual malice was suggested prosecution, pro liability for malicious punitive damage support needed award primarily ceedings have been initiated In Fos- in a action. bringing than purpose other that of Q. R. Chicago ter v. B. & definition, justice.” This an offender 572, however, the Court held that S.W.2d at fact, requiring proof of malice while not necessary liability type of malice bring require proof malice and punitive justify dam- was also sufficient step majority back into Missouri Loewer, Dye v. ages. jurisdictions. apparently The Court (Mo.App.1936). upon a Missouri case decision based its Having improperly MAI 16.01 held that damages in form another involving punitive in malicious element malice defines the upon United States Su- (1981) of action and actions, MAI 23.07 It should be noted that preme Court case. incorporate the so as to should be modified Supreme case re- Court the United States We definition.4 believe Restatement required in Foster upon some willful lied respondent a new trial should be afforded malicious,” punitive also it could assess then paragraph of MAI 23.07 should second The "Second, doing damages against appellant. de- The Notes on Use in so as follows: amended purpose primarily for “malicious” must fendant acted to MAI indicate that 10.01 justice and bringing an offender to jury, than that of found and that definition is defined for the grounds, and.” reasonable acted without Consequently, the defini- in MAI because 16.01. requires still defini- grounds” "reasonable term is insuffi- described MAI 16.01 tion malice tion. MAI 16.05 awarding punitive damages, justify cient to again MAI our attention on 16.01. focus 10.01 that under MAI 5. The was instructed wanton, "willful, appellant’s if conduct (1983), petition granted conduct or 306 S.E.2d 574 reckless indifference to Corp., others, Jones v. McDonald aggrava- tort N.C. “[t]he motive, ted the evil v. A.F. and on this rests 311 S.E.2d 292 Stanford Milwaukee exemplary damages.” rule of supra, Grocery Messick S.E. at Arms, & S.P.R. 489, 493, Co. Barbera, supra, 91 U.S. 817-18; Rogers v. 489, 493, OTTO 23 L.Ed. 374 164-65; Corp., Lee v. Southland N.E.2d at misapplied rule announced in Foster found 219 Va. S.E.2d Gi way its into the mainstream of our law Virginia, ant Pigg, Inc. v. 207 Va. without a full and accurate consideration of In First National 152 S.E.2d 271 the issue. Todd, 251, Mary’s Bank St. 283 Md. (1978), Maryland court 389 A.2d expressed by The standard MAI 16.01 majority acknowledged that the rule is that Foster approved conflicts with necessary justify actual malice was to prevailing punitive damages view that damages. Id. awarding punitive 389 A.2d should prose- not be awarded a malicious Gill, at 373-74. See also Rizza v. cution action unless the defendant’s mental Conn. something (1963); Ross Sup. state reflects akin to actual mal- 189 A.2d 794 courts, Kerr, (1917); ice. necessity, Some demand the 30 Idaho 167 P. presence of Stamberg, actual malice because of their Nardelli v. N.Y.2d requirement necessary that actual malice is (1978); Spar N.Y.S.2d 377 N.E.2d 975 liability. gener- to establish Commentators Bank, Savings row v. Vermont 95 Vt. ally justify observe punitive that to dam- (1921); McFarland v. 112 A. ages “personal there must be ill or Co., Inc., Skaggs 678 P.2d oppressive prosecution.” conduct in the W. (Utah 1984). It should also noted that a be Keeton, Prosser & W. An- at 888. jurisdictions indirectly require number of suggests other source that there must be prosecutions actual malice in malicious proceedings actual malice “or where the through general policy requiring their complained of were commenced cir- under punitive damage for all actual malice wantonness, oppression, cumstances of or a awards.6 disregard plaintiff’s rights.” reckless § 114, 54 C.J.S. Malicious Prosecution at express MAI 16.01 ad does required equately degree culpability punitive damages prosecu in malicious for Many courts have held that actual malice policy surrounding public tion cases. The “required support puni to an award of prosecutions fol malicious dictates damages in an tive action for malicious majority low the rule that actual malice is Annot., prosecution.” 94 A.L.R.3d required punitive damages in a mali “[m]any One observer notes that cious action. We believe that require proof states of malice more the definition of malice set forth in the hatred, lay personal spite ill sense of or treatise co-authored our brother Black- Douthwaite, Jury will.” G. Instructions on mar articulates the correct standard and Damages in Tort Actions 437 suggests proper the form of a instruction: require higher degree either Courts ‘maliciously’ “An act or a failure to act is culpability awarding punitive before dam done, prompted accompanied by if or ill ages liability they they than do for or re will, grudge, spite, or either toward the quire stringent proof more of malice liability. injured person individually, or toward all punitive damages than for (Fla. catego e.g., Whitfield, Adams v. persons groups in one or more 290 So.2d 49 Gwynne, Jones v. 1974); N.C.App. injured person ries of is a mem- Stein, A.B.A., (1980); Damages Damages generally Jury Instructions L.A. and Re 6. See Model Litigation covery: Injury J.D. For Business Tort Personal and Death Action 369 Kircher, Damages: Law Ghiardi & L.J. Punitive Damages C.J.S. § at 1141-43. 5.04, p. W. Prosser & and Practice (Second) See also Restatement of Torts § 908. Keeton, Redden, 10-11; Punitive K. W. Blackmar, ber.” E. Devitt & C. 3 Federal course make future revisions and amend- § 85.11, Practice and Instructions at 121 necessary ments desirable. (3rd 1977). ed. prior To the extent that either our eases I. degrees or MAI 16.01 conflict If Judge Gunn is correct in his conclusion necessary support malice we have found failed to amake submissible punitive dam- presently prevailing case under the therein, ages longer they can no fol- go there no into would be need to detail encourage lowed. need to as- citizen appropriate about instructions for future participation sistance the enforce- believe, however, I inclined cases. am compels long ment of our criminal laws this could found that overdue reexamination law of mali- agents prosecutor defendant’s led the cious produce could evidence believe The cause is reversed and remanded for support charges against each of the seven opinion. retrial consistent with suspects, their with reference to individual boxes, agents tool when the knew that the HIGGINS, DONNELLY, BILLINGS commingled tools in- had been before JJ., concur. Prosecutor, ventory taken. now BLACKMAR, J., sep- in in concurs result judge, as follows: Hamilton testified opinion arate filed. CROSS-EXAMINATION RENDLEN, GUNN, C.J., J., dissent Q Okay. What information was it separate opinions in filed. given you had for cause to believe that Robert Sanders and BLACKMAR, Judge, concurring in re- the 6 crew had committed other members sult. attempted the crime of theft? agree judgment I re- the should be Well, they the indicated that tools and the case remanded for new tri- versed box had broken from the tool been al. gang in number into were found the Judge soundly traces Welliver the histo- in gang and also the individual boxes box ry of malicious actions in Mis- gang in were the 7 box. And these souri, convincingly demonstrates that given were to individuals whose names 16.01, approved pro- instruction as MAI the being me on crew as number ceeding applied in the law defamation that the defendant acted purpose.” cases, dard cution opinion struggled The extensive should cases. “does simply with I be agree show that applied the quotations require that more problems to with an other the malicious in rigorous the courts inherent improper principal to prose- stan- have find in boxes, REDIRECT EXAMINATION trial and fessions; stolen tools Q ^[*] Mr. you could have isn’t that true? prosecuted ^[*] Hamilton, in each of ^[*] if there had been them without proceeded with the the # individual tool ^{[*] [*]} con- be this Court will be should are not counsel as suits actions, used help of the MAI do so in this one. approved. but wholly in malicious freely prescribes instructions civil give very little the consistent. cases, kind of instruction which The several Committee, may of I believe Inasmuch guidance Court, expressions and related that we with to you sions? tool were identifiable A That’s A If there had Q ^[*] boxes, I wouldn’t have needed the You could have ^[*] right. think that’s correct. ^[*] in been each of proceeded ^[*] stolen tools that the individual ^[*] and then confes- ^[*] 16.01, portions could of the examina- Just as with MAI the definition witness’s subject quoted built 23.07 or by Judge destroy be into MAI made Gunn do not separate of a instruction. testimony. the effect of this juries If would this were done then remain, There would under new stan- appropriately instructed as to mental proposed principal opinion, dard in the required longer No state defendant. question of the intent of the defendant’s a situation in which the would agents. agree I statement “does defense of malice not indicate principal opinion that “conduct is so jury that the defendant had to have acted wantonly willfully reckless or disre- culpable requisite with the mental state.” gard of one’s that a trier of fact speculation regarding There could infer from faith or such conduct bad use of appropriateness continued malo animo” concept within MAI 16.01 other actions in which malice The plaintiff op- malice. should have the be inappropriate issue. It would portunity for a new trial under the revised present holding to extend us our cases standard. possibility There is also the cases, than evidence, argument additional and of about might ap- counsel consider a conservative permissible inferences from all the evi- malice, proach possi- the definition of dence directed to the revised standard. bly anticipating further reexamination of prevailing standard. II. III. Although disagree I do not with the agree I also that there is a need to modi (Second) statement in Restatement of Torts present the the fy MAI 10.01 as to allow § (1965), “To subject that to punitive damages pros ance of in malicious liability prosecution, for pro- malicious the Although might ecution cases. it ceedings primarily must have been initiated thought plaintiff been verdict for a purpose bringing for other than that of prosecution necessarily in a malicious case an offender justice,” to this statement punitive damages, connoted to entitlement hardly serves as a definition of malice and jury, in the of the is discretion there clear I not do believe that it should the sub- Rustici precedent contrary holding in for a ject verdict-directing of a or an instruction (Mo. Weidemeyer, S.W.2d 762 banc instructions, essential definition. The rath- 1984), might which that a held defendant er, speak should in affirmative terms as to damages in for recover actual a claim false plaintiff what the must show. Section 668 being pu arrest without entitled to submit speaks give of the conduct which not damages. nitive to is liability rise silent as the show- in prin- instruction recommended ing plaintiff I which the must make. be- restrictive, opinion1 unduly cipal it purpose lieve would serve the of alternatives, give not plaintiffs does in revised Missouri law as enunciated in the it was tak- found model principal opinion MAI if 23.07 were left en, demonstrating of that the defendant’s following and if an in intact instruction “wantonly” “oppressively” was or act required terms were substituted plain- I done. would hesitate to hold that “maliciously,” definition of now found necessarily “person- must tiff demonstrate 16.01, MAI cases: hatred, or ill spite al will.” The focus “maliciously” The term as used purpose causing should on a of rather (these) instruction(s) acting means inten- I commend harm. would for malicious tionally improper wrongful with an cases an instruction lieu of motive, present 16.01, consciously acting wan- MAI following disregard language: others. ton for the of Blackmar, Instructions, Ed., Jury Practice 3d

1. 3 Devitt and Federal 85.11. you recites, If find plain- majority opinion the issues in As favor of the sec tiff, ond you prose and if believe element of a cause for malicious the conduct of instigation proceedings by cution is the of defendant as submitted in Instruction _ impose liability, the defendant. To the in (here Number of insert number stitution of be in the instruction) plaintiffs directing verdict by way form of action some affirmative wrongful- or wanton and was willful advice, encouragement, pressure, or other purpose ly causing injury, done for the Cottom, wise. Palermo then in addition to damages to which liability There is no (Mo.App.1975). you plaintiff find entitled Instruc- under truth, merely reporting the Rustici Number_(here insert number (Mo. Weidemeyer, 673 S.W.2d plaintiffs damage instruction), you 1984), merely giving banc information plaintiff an award additional amount which leads to a Palermo punitive damages in you such sum as Cottom, supra. happened That is what punish will serve to believe here. to deter him and like others from light An the record in examination of conduct. most to the leads to the favorable evidence, plaintiff, This under the should expressed Judge same conclusion as opportunity to have the submit the issue of Flanigan’s concurring opinion when the punitive damages under in- the revised case District: was before Southern say I struction. cannot that a could nothing “There in the record indicate n wrongful injury. intent not find to cause or Heers either Warblow bore an actu- stated, I in the For the reasons concur al hatred or malice towards Sanders and it principal opinion. result reached most is doubtful that even a charitable support Inasmuch as these views do not com- would a find- view the evidence of them lied to support majority mend the of a either Court, prosecutor.” There is no evidence that proceed counsel will have as best any purpose acted for instructions, Warblow or Heers framing they can in the bringing justice those than that my suggestions with no assurance will be responsible taking missing for the tools. ultimately approved. This is difficult task rely necessarily on his wit- Defendant must required when counsel are to make ness, Prosecuting Attorney Hamilton. specific objections the in- substance of misinterpreted that he Hamilton indicated structions, lawyers get and so have the some of information misunderstood they along position can the best The given him defendant. crucial mis- opinion them. majority which the leaves ability de- understanding concerned provide prosecutor fendant to RENDLEN, Justice, dissenting. Chief tools, indi- inventory specific of the stolen I dissent and reverse respectfully would cating tool each from which individual box trial for the judgment court subsequent- tool was recovered. Hamilton opinion dissenting forth in the reasons set possible not ly learned that this was However, impor- Judge I feel it Gunn. First, a number the tools two reasons. guidance for the Bench and provide tant to any precision. could not identified with according- cases Bar in this and similar Second, placed had all tools necessary I ly to the if retrial is subscribe tool into a from each crew member’s box suggested in the forms jury instruction single pile, thereby foreclosing large Judge opinion Blackmar con- separate inventory possibility of an each work- curring in result. prosecutor er’s tool box. The testified that intentionally concerning he misled was not GUNN, dissenting. Judge, these facts: case, Q. you upon I Based what were told then would reverse the facts of the On through learned you and what later judgment. aspects Q. they investigation you various of the But did understand that conducted, you given wanted it done within the framework were facts as you on of the December 20 Mr. law? Warblow and Mr. substantially Heers correct? understanding. my A. That’s

Q. they you ask And didn’t to overreach go something you ahead with A. The substantially facts were correct. didn’t feel should be done? Q. Okay. Now, then, you don’t feel Mr. No, good thing they A. it’s a Hamilton, you were misled in didn’t. way by the given you? facts that were Q. Okay. Why you say do that? No, A. I don’t think I was A. I have done it under wouldn’t those misinterpreted misled. I think I some circumstances at all. things. Q. Well, any strongest possible misinterpretation was on inference from all

your part employ- and not on the witnesses is that defendant’s basis of what ees they you? unintentionally told have contributed misunderstanding part to a on the say A. All I can they is what told me. prosecutor concerning the facts surround- my interpretation something And was ing the theft. Such conduct is insufficient different than later we found the facts make case for malicious to be. following statement from La Font v. Q. Well, any misinterpreta- that — Richardson, (Mo.App.1938), 119 S.W.2d 25 tion of that kind would have mis- been appropriate: “when it is shown that the interpretation your part and not on — prosecuting prosecut witnesses consult the they you; what told faith, attorney good and communi A. That’s correct. facts, cate to him all the ascertainable He testified further as follows: acting on his advice institute the criminal Q. you they Were able to do—did indi- proceedings they ... should be exonerat they done, cate something wanted if language pertains ed.” Id. at 29. This possible? Here, prosecu the instant case. it was the Well, yes, A. they suggested were concerned tor who that Herrs and War- about the matter. sign complaint. blow blank The de partrés?who initially fendants were Q. else, then, you What did tell them? suggested proceedings. the institution of A. I indicated they that based on what They only sought had a search warrant to had told me—the information that aid the solution of the crimes of theft. me, given charges had for at- suggestion rejected by prose Their tempted stealing did —that Thus, cutor. there is no issue of probable cause for that. confronting cause this Court. See Moad v. (Mo. Pioneer Finance Q. Now, this, Okay. time in Mr. 1973) Judge Higgins gives in which full Hamilton, any urging was there explanation to the of essential element pressing anything of kind from probable prosecution in cause malicious people you the Daniel’s for to file these finds, alia, and inter that mere dismissal charges? complaint “any of a does not create infer concern, obviously, A. No. There was probable ence of want of cause” nor rebut my it was decision to file the prima facie case of cause. Id. charges. at 799.

Q. some- You understood wanted prosecutor’s sug- I cannot translate the thing done? gestion prosecution subsequent of and dis- Right. charges A. into missal of sufficient evidence $200,000 damages. support prosecu- punitive an and The action of malicious tion. for a trial court sustained a motion new trial, ground apparently on the The sum and facts substance of the of grossly so as to indi- verdict was excessive single this case lead to the plain and conclu- bias, passion prejudice. cate and case evidentiary support sion that there is no retried in the Circuit Court Pettis a malicious action. County and returned a verdict for Additionally, case, the definition this $200,000 respondent in the sum actual of “malice” makes no difference. There $750,000 damages punitive damages. simply by any was no malice here defini- granted The trial court a remittitur of tion. $450,000 ground punitive on the against

damage award was excessive weight Appellant of the evidence. appealed Ap- thereupon to the Court District, respondent peals, Western 83.06, Rule cross-appealed. Pursuant trans- the Western District recommended prior opinion light taking of our fer transfer v. Daniel Internation- Sanders LUCAS, Steven Walter (Mo. 1984), banc 682 S.W.2d Corp., al Plaintiff-Respondent-Cross-Appellant, decided herewith. We reverse and remand. prose- surrounding The facts the criminal CORPORA- INTERNATIONAL DANIEL are cution from which case arises iden- TION, Defendant-Appellant- respects in all to those in tical relevant Cross-Respondent. should be made to Sanders. Reference No. 65793. complete for a that case statement litigation. prompting this circumstances Missouri, Supreme Court of purposes, our it is sufficient note For En Banc. respondent herein was one seven Dec. 1984. charged of a persons the basis com- agents, signed appellant’s plaint Rehearing Denied Jan. attempted theft of misdemeanor of fifty gauges over dol- valued at tools prosecutor later dismissed the lars. charges. Callahan, Miller, R. Charles Richard G. City, plaintiff-respondent-

Jefferson points on Appellant has raised several cross-appellant. appeal, but we need not address these Burruss, Jr., Lowry, J. Kent John E. holding our questions because conclude we defendant-appellant- City, for Jefferson Corp., v. Daniel International Sanders cross-respondent. ap- disposition controls Sanders, that a peal. In held WELLIYER, Judge. suing theory on a Lucas, prove initiated the that the defendant Walter Respondent, Steven prosecution “primarily purpose for a brought this suit for malicious jus- offender to bringing Cor- than that appellant Daniel International against Sanders, quoting Callaway tice.” in the Circuit Court poration (Second) tried of Torts 668 initially was in Restatement The cause County. addition, qualify change of venue. The In held County on a Cole damages prosecu- respondent, punitive in a malicious a verdict jury returned action, prove $250,000 damages that the awarding him in actual

Case Details

Case Name: Sanders v. Daniel International Corp.

Court Name: Supreme Court of Missouri

Date Published: Dec 18, 1984

Citation: 682 S.W.2d 803

Docket Number: 65529

Court Abbreviation: Mo.