St. Louis, Iron Mountain & Southern Railway Co. v. Tyus
131 S.W. 682
Ark.
1910
Check Treatment
Wood, J.,

(after stating the facts). One of the grounds of the motion for new trial was that the verdict was contrary to the evidence. The court should have granted the motion on that ground. In Chrisman v. Carney, 33 Ark. 316, 322, we said: “The mere innocence of the party accused will not sustain an action for malicious prosecution, if the circumstances be such as to induce the prosecution to suppose the party proceeded against to be guilty. “For,” as Blackstone says, “it would be a very great discouragement to the public justice of the kingdom if prosecutors, twho' had a tolerable ground of suspicion, were liable to be sued at law whenever their indictments miscarried, and therefore any probable cause for preferring it is sufficient to justify it.” 3 Blk. Com., 126-7. And in Lavender v. Hudgens, 32 Ark. 763, this court held that: “The want of probable cause is a material averment in an action for malicious prosecution; and, though negative in form and character, it must be proved by the plaintiff, when put in issue, by some affirmative evidence.” The undisputed facts of this record show that there was “a probable cause” for the prosecution that was institued by appellant against appellee in the justice’s court. The uncontroverted evidence shows that Morris, the agent of appellant who instituted the prosecution, was in possession of information that warranted him in suspecting that appellee was guilty of defrauding appellant by obtaining money in the manner disclosed by the evidence. The undisputed facts certainly warranted one charged with the duties of the division engineer in believing, or at least strongly suspecting, that appellee, in the nomenclature of the craft, “had padded the payrolls.” That was sufficient to justify the criminal proceeding against him. If the evidence upon which Morris acted was not disclosed in the record, then the fact that the grand jury did not find a true bill against appellee might be taken, at least, as presumptive evidence that there was no probable cause for the proceedings against appellee. But the record discovers all the facts, and shows what prompted Morris to institute the criminal proceedings .

In our opinion these facts show beyond doubt or controversy that the suspicions of Morris were well grounded. While slight and groundless suspicion would not be sufficient, a belief or suspicion, well founded or based upon reasonable and probable ground, would be.

This being true, the liability of appellant is not established. The evidence of appellee, at most, only tends to show that he was innocent of the crime. But the burden was on him to show want of probable cause. The evidence does not even tend to show that there was lacking a probable cause for the prosecution. But, on the contrary, the affirmative and undisputed evidence shows the existence of such cause.

The judgment is therefore reversed, and the cause is dismissed.