168 Mo. 47 | Mo. | 1902
— Action for malicious prosecution. The defendant banking company, of which defendant John Mulholland is president, and the other defendants were employees, is a business concern, whose chief, if not exclusive business consists in buying laboring men’s time; that is, .by discounting' their pay checks, etc. The calling seems to have been remunerative, as they employed at a salary A. L. Sherman as a lawyer to attend to their legal business and gave him deskroom in their banking office.
J. H. Stubbs, the plaintiff in this action, testifying in his own behalf, in substance stated that he was thirty years of age; that he had never been in Kansas City until brought there on a warrant of arrest in April, 1897, from his residence in Scott county (Blodgett). He had formerly lived in that county; lived there somewhat over twenty years, having arrived there from Eddyville, Kentucky, when a boy nine years old. On his arrival in Scott county, he worked on a farm until October, 1888, when he was employed in the store of Marshall, McMillan & Company of Scott county in their dry goods department; that his physician, thinking he had Bright’s disease, advised his removal from Scott county to Springdale, Arkansas, and rec-mended the water for his complaint; that accordingly he removed there with his family, consisting of a wife and two children, and went into the grocery business with W. G-. Thompson, A. L. Thompson and Chas. Stubbs, his brother, and
He also testified as to expense he had incurred.
The complaint filed on April 21, 1897, by one of defendants, Thos. A. Barber, charged plaintiff with forging the name of ~W. G. Thompson on the following check: “Treasurer of the Atchison, Topeka, & Santa Fe Ev. Co. Pay to the order of "W. G. Thompson ($75.00) seventy-five dollars in full payment of wages for May, 1896. J. Moore.” Indorsed on the back as follows: “W. G. Thompson.”
The forging was charged to have been done in Jackson county, Missouri, on the — day of June, 1896, in order to defraud the John Mulholland Banking Company, a corporation.
On hearing had on April 28, 1897, justice Case adjudged plaintiff not guilty and discharged him. At the trial, Mulholland, Barber and Hughes all testified against plaintiff.
Hughes, who made the arrest, had been in the employ of the John Mulholland Banking Company since May, 1893, and his time went on while absent going to Scott county, making the arrest and returning with the prisoner. Sherman was the general attorney of the banking company, and with his knowledge and under his directions, Hughes got himself appointed special deputy and went and arrested and brought plaintiff from Scott county; Barber, defendant, who made the complaint was working on a salary for the banking company; he was cashier and secretary.
It was testified by A. L. Thompson, father of W. Q-. Thompson (both of whom were plaintiff’s partners) that plaintiff, during the month of June, 1896, was continuously at Springdale, Arkansas, except when he went fishing two or three times, a distance of seven miles, and once up to Rogers, distance ten miles, on business for the company, and with those exceptions he was at 'Springdale all the time from April to November. That on those little excursions plaintiff was not gone long enough to have gone to Kansas City and returned.
The books of account of said grocery firm being produced, witness testified that the entries in that book in the month of June, 1896, were made by witness, Eloyd Thompson, W. G. Thompson, Ohas. Stubbs and Joseph H. Stubbs and another party, who had been delivering goods, by the name of Dodson; that witness knew the handwriting of plaintiff Stubbs and identified certain entries made in said books of account by plaintiff Stubbs in June, 1896. "Witness further testified that W. G. Thompson had a separate postoffice box from the box of the
Ohas. Stubbs, brother of plaintiff, confirmed what A. L. Thompson had testified regarding plaintiff’s continued presence in Springdale, with the exception of the short excursions aforesaid; that both plaintiff and witness sold goods in the store at Springdale, Arkansas, during the month of June, 1896, and that, in the opinion of witness, plaintiff was in the store at that place every day during the month of June. .
W. G. Thompson, whose name plaintiff had been charged with so forging, testified that he lived at Springdale, Arkansas; that he was the payee in said checkp.that he was then and had been in the employ of the Atchison, Topeka & Santa Ee Railroad Company, and was at the time of the issuing of that check in June, 1896; that he had been in the employ of that company since 1892; that he knows the handwriting of plaintiff Stubbs, and has known it since January, 1896; that the signature of W. G. Thompson on the back of that check is not the handwriting of plaintiff, and is not the handwriting of the witness; that witness had correspondence with the general officers of the Atchison, Topeka & Santa Ee Railroad Company respecting the non-appearance and loss of this check; this check was issued in June, 1896, for the services of witness in May, 1896; said check reads as follows:
“Treasurer of the Atchison, Topeka & Santa Ee Ry. Co., office. Pay to the order of W. G. Thompson, seventy-five ($75.00) dollárs, in full payment for wages for May, 1896.
“J. Moore, Paymaster.”
Witness W. G. Thompson further testified that he bundled up and sent to Mr. Kinney, the detective of the Atchison, Topeka & Santa Ee Railroad Company, and who was a
John Mulholland, president of the defendant bankingi company testified to the effect following:
Hughes is the outside man and collector; that the wit- - ness knew when Hughes went to arrest plaintiff; that Hughes consulted him (witness) before he went; that witness instructed Hughes to consult with Sherman; that after plaintiff Stubbs was arrested and brought to the Savoy Hotel in Kansas City, the witness went to the Savoy Hotel and identified Stubbs. On cross-examination, witness Mulholland, in response to questions by his counsel, testified to the circumstances of passing of said check on his bank. His statement was that this check was presented to the bank by a stranger without identification and cashed by the bantc. This was late in the day, on some day in June, 1896. The check came back to the bank in September or October, 1896, with the claim that it was a forgery, and Mr. Barber of the bank refunded money while witness was absent in Ne_w York. Witness further testified on cross-examination that he had a conversation with detective Kinney, that he told detective Kinney that the man who presented his forged check was five feet, seven or eight inches high, rather dark complexioned, small mustache, not very heavy, and dressed in a business suit of clothes like a railroad clerk is usually dressed; that afterwards he again saw said Kinney and Kinney told him that he had been down at Springdale and looked at the man himself, meaning plaintiff Stubbs, and made inquiry of the postmaster and a banker there, and showed this check to the banker, and the banker said it looked very much like Stubbs’s writing; that Kinney had the check and took it there with him; that Kinney told witness that the postmaster at Springdale told him that Stubbs had said that he could imi
On re-direct examination, defendant Mulholland testified that he did nothing further in the prosecution of plaintiff Stubbs, after he was discharged by the justice of the peace; that neither the witness nor Barber nor Hughes went before the grand jury, and that defendants did nothing more in the prosecution of Stubbs after he was discharged by the justice; that he had learned a man in the office of the Santa Ee com-’ pany at Topeka had been discharged because.he was suspected •of rifling the letters containing these checks payable to W. Gr. Thompson; that he had been told by Kinney that this man, an employee of the Santa Fe company, was discharged because he was suspected of rifling those letters. That he had made no complaint against this man who was discharged by the company. The witness further testified that from the time of the presentation of this check.in June, 1896, to the filing of the complaint, he never saw the man that he believed was the man that presented that check; that he came to the conclusion that plaintiff Stubbs was the man from the information that Kinney gave him, and the fact that plaintiff Stubbs answered the description of the man, being about five feet, seven inches high; that the witness had seen a good many men of that height; that so far as witness knew neither Barber nor Hughes ever saw the man that committed the crime between the time of the commission of the crime and the filing of this complaint; he did not know anything about Joseph H. Stubbs except what he learned from Kinney; he got the same information from Kinney about the discharge of this clerk in the Santa Ee office; he never
“No, sir; I had one man arrested whom I believed forged the check, and I will have no other man arrested.”
[“The time when Kinney made the report to witness of what, he had seen at Springdale was about a week before the beginning of this prosecution; Kinney told him at the time that he was the man and that his name was Stubbs; as I recollect it he told me that he had seen Stubbs at Springdale, Arkansas.”]
After Kinney had testified, Mulholland changed his testimony as to what is placed in brackets respecting Kinney’s statement:
“Q. I don’t know whether I understood you right or not; I understood you to say when Mr. Kinney came back from Springdale that he informed you that he saw Mr. Stubbs there at Springdale? A. He either said that or said that Mr. Stubbs answered the description of the man. My recollection is one of those two things; he either told me that he saw him or that my description answered the description of Mr. Stubbs; I am not clear as to the positive statement that he had seen Mr Stubbs or whether he answered the description.”
That the witness swore before the justice of the peace that this forgery was committed on June 14, 1896; that he after-wards changed his testimony and fixed it on June 15, 1896. Witness further testified that defendants Hughes, Barber and himself each went to the Savoy Hotel after Stubbs was brought there and identified him as the man; there was about ten minutes interval between our several identifications; possibly half an hour. Neither Barber, Hughes nor myself had seen the man prior to his arrest; we identified him at the Savoy
John E. Marshall, state senator, and member of the firm of Marshall, McMillan & Company, of Scott county, Missouri, gave testimony to the effect that'he had known plaintiff for twelve or thirteen years; when first knew him he was on a farm; that he had had plaintiff in his employ from 1888 to 1895; that plaintiff was an honest, sober and industrious man; character as citizen was good prior to his arrest; that the arrest had injured plaintiff in remote parts of the county where people did not know him; but not with witness; that plaintiff had, since the arrest, served witness as before; that witness tendered to Hughes and Gorman, who arrested Stubbs in Scott county, a bond for his appearance; that Stubbs was brought to Kansas City under protest, as he wanted to give a bond in Scott county. That Stubbs was in jail in Kansas City; that when the witness and Stubbs and the party arrived in Kansas City at the Savoy Hotel witness went to get a bond; that they promised witness that they would hold Stubbs there until we filed this bond; ivhen we arrived back at the Savoy Hotel they had taken him to jail; afterwards we got bond and he was released.
Defendant Hughes was recalled to testify on behalf of defendants, and doing so stated that after receiving directions from Mulholland he went to Sherman, general .attorney of the bank. After arriving at Scott county, Missouri, where plaintiff Stubbs lived, witness found Stubbs and identified him as the man he thought had passed the forged check in Kansas City in June, 1896; that witness made no inquiry as to what the reputation of Stubbs was, either in Scott county or Spring-dale; that he made no inquiry of Mr. Kinney as to what Stubbs’s reputation was; that witness had no information from
The testimony of Gorman,' the detective under. Kinney, is in line with that of Hughes as to the entire absence of any precaution being taken as to the identification of plaintiff, as the forger who indorsed the checks payable to W. G. Thompson. The station agent at Blodgett pointed out to him, “Joe Stubbs,” and the functionaries from Kansas City spoke to him, and took a drink of beer with him, and without making •a single inquiry of him, or of those with whom and among whom he had lived for so many years, 'without disclosing their purpose, arrested plaintiff, and refusing to take bond, incontinently hurried him off on the cars to Kansas Oity.
Detective Kinney’s testimony was in behalf of defendants, in substance and effect this:
That he resides at Topeka, Kansas, and. is special agent for the secret service of the Atchison, Topeka & Santa Ee railroad; that, in February, 1897, he called on defendant Mul
The account of the witness, Kinney, as to what he related
Q. Eecite here and state in your own way what was told Mr. Mulholland that you had learned ? A. I called at Mr. Mulholland’s office, found him there and I told him that' I had been at Springdale, Arkansas, and I believed that I had located the party, or located the man,. I believe was the language I used, and I went on and related to him about my investigations at the postoffice and about my learning that Mr. Stubbswas connected with the firm there and had the combination to the postoffice box of the firm and that he answered the description of the party who cashed the check, and that he was in position, by reason of his being a member ’ of the firm and! having the combination to the box, to have gotten in that box and gotten the letter containing this check. I says, “the chances are he is the party;” I says, “I am sufficiently satisfied of it; that I feel some one who knows him ought to be sent to Blodgett to look at him before we proceed any farther with this investigation;” I says, “Do your people say they can identify the mau ?” I says, “I believe this is the proper thing to do, to send a man there to look at Mr. Stubbs;” I says,, “if he is the man you can bring him back, if not there is no-harm done, we can look further.” Mr. Mulholland then called Mr. Hughes and Mr. Barber up; they talked the matter over and he says to Mr. Hughes, “take it up to Sherman and have him go to the county attorney with it.”
"Witness further testified that Mr. Mulholland said he would have the matter taken up and have Hughes go to Blodgett to look at this man. This place, Blodgett, is where Stubbs lived in Scott county.
On cross-examination the witness, Kinney, testified that he was present at the trial before the justice, but did not testify; that he saw the Springdale postmaster present as a witness in this case at the last term of court; that witness remem
“Q. He had the opportunity and therefore he- was the1
“Q. Ton think then that men who are partners in business and have chances to forge their partners’ names are given to forgery? A. If they have no opportunity they can not commit the crime and I have known partners gifted in such things.”
Witness further testified that he never saw Stubbs prior to his arrest; that he understood from Mulholland that nobody had seen the man that committed the crime from the time of the commission of the crime to the 'time witness made said report. Witness swears positively that he never saw plaintiff, Stubbs, prior to his arrest; that he understood that neither Mulbolíand, Barber, Hughes nor Gorman had seen the man they thought committed this crime from the time of its commission to the time of the arrest. Witness further testified that the September, 1896, check of Thompson was also -lost and that witness looked that up at the same time. That there was a man in the treasurer’s office of the Atchison, Topeka & Santa Ee Railroad Company at Topeka, by the name of Mason, and the witness testified that the parties cashing the second check positively identified Mason as the man. Mason was employed in the office of the company where these checks were mailed; that Mason has not been prosecuted for the offense; that witness brought this man Mason down to Kansas City in September, 1897; that Mason was taken to Mr. Dreyfus of the Eagle Clothing Company, which had sold this Mason an overcoat; that Dreyfus identified Mason as the man who had purchased the overcoat from him.
In explanation of why the witness made no inquiry as to the character and reputation of Stubbs, he answered as follows:
“A. I didn’t make any inquiry into the reputation or character of the man because I didn’t know who committed this offense; the parties paying the check claimed they could identify the man, and my instrúctions were to assist the*68 parties who were the losers — that is, the party, whó paid the check — to assist them in every way I could to locate the guilty parties; our company was not any loser at all; they turned over the check to the parties and issued a duplicate, and for that reason I did not think it necessary to inquire into his character.”
The following question and answer was also propounded and given by the witness Kinney:
“Q. You tell this court and jury you couldn’t have gotten Mr. Thompson any time you desired him and have him come home or meet him at some point and gotten his opinion as to whether that was the handwriting of Mr. Stubbs, his partner in business? A. 'In explanation of this, I have several hundred or thousands of other cases to attend to and I couldn’t permit my business to be closed, out with this one case; I gave Mr. Mulholland all the information I got at Springdale and asked him to identify him, and see if he was the man.”
Defendant Barber, testifying on part of defendant, stated that he was manager of John Mulholland Banking Company, and was secretary in June, 1896; that the man who passed the forged check, came into the office at the bank about five o’clock in the evening; he had nobody to identify him and I referred him to Mr. Mulholland; he showed Mr. Mulholland some letters and Mr. Mulholland sent him back to me and told me to cash the check, which I did. That was June 13, 1896. The check came back September 8, 1896. The man who presented this check was about five feet, seven or eight inches high, dark, and had a small dark mustache and dark hat and cutaway coat; 1 gave his description afterwards to Mr. Kinney, and the check was turned over to Kinney at that time; Kinney afterwards went to Springdale, Arkansas, and told us upon his return about Thompson being in business with Stubbs, and Mrs. Thompson having a private postoffice box of her own; that when plaintiff Stubbs was brought back to Kansas City,
Ray Smith, assistant prosecuting attorney of Jackson county, testifying for defendants, stated that Mr. Wright, acting as the representative of defendant, for the most part conducted the prosecution of plaintiff before justice Case.
The testimony of A. L. Sherman, the salaried attorney of the banking company, was that Mulholland had talked to him about the case in March or April, 189J; that then Hughes and Gorman told him more particularly the circumstances of the case. The substance of Sherman’s testimony is the following:
Q. State what information you received from them during those different conversations ? A. This conversation was over a year ago; but they stated to me that one W. G. Thompson, who was an employee of the Santa Ee Railroad Company, that his home was at Springdale, Arkansas; that his wife lived there, but he was on the road a great deal of the time in the discharge of his duties as an inspector for that company; that he had failed to get his checks for the months of June and September, 1896; that he claimed those checks had been forged; that he made complaint to the headquarters at the treasurer’s office of the Santa Ee Railroad Company, and made complaint his name had been forged to certain checks; Mr. Hughes had with him this $J5 pay check issued to Mr. Thompson, and offered in evidence here — showed me .that check and the indorsement on it and stated further that
Q. You got out all the facts, asked questions, and so on?. A. Yes, sir, I tried to get all the facts.
Defendants interposed no demurrer to the evidence.
This was in substance the evidence in the case.
Whereupon, the court, over the objection and exception of plaintiff, gave this peremptory instruction:
“The court instructs the jury that under the law and the evidence.in this case the jury must find for the defendants.”
Thereupon plaintiff took a nonsuit with leave, etc., and having moved unsuccessfully, co.mes here on appeal.
The evidence has been thus fully set forth, because necessitated by the action of the trial court in giving the quoted instruction, which action, being examined by the light of that evidence, and of the authorities pertinent thereto, will determine whether the’ ruling of the trial court on the point mentioned, was correct or otherwise.
1. And, first, as to the discharge of plaintiff by justice Case after examination had.
At the time of such examination, to-wit, April, 1897, section 4036, Revised Statutes 1889, now section 2456, Revised Statutes 1899, was in force, which reads this way:
“If, upon the examination of the whole matter, it appear to the magistrate either that no offense has been committed by any person, or that there is no probable cause for charging the prisoner therewith, he shall discharge such prisoner.”
So that, as plaintiff was discharged, the conclusion must
But our attention is called by defendants’ counsel to section 4403, Revised Statutes 1889, where it is enacted:
“If a person charged, with an offense punishable with death or imprisonment in the penitentiary alone shall be discharged by the officer taking his examination, or if he be recognized or committed for such offense, and no indictment be found against him, the costs shall be paid by the prosecutor or person on whose oath the prosecution was instituted, and judgment shall be rendered therefor as provided in the next two preceding sections, unless the officer taking the examination, or the grand jury before which the same is investigated, shall certify that there was probable cause for the prosecution, in which event the costs shall be paid by the State.” That section was repealed in 1899. [See sections 2835, 2836, R. S. 1899.]
And counsel assert that inasmuch as the magistrate, upon, discharging the prisoner, as shown by his docket, did certify thereon, in addition to the fact of such discharge, “there being probable cause for this prosecution, ,it is ordered and adjudged that the State of Missouri- pay the cost herein taxed at twenty-six dollars and forty-seven cents,” that therefore, and thereby, probable cause was shown for plaintiff’s prosecution.
In other words, to reduce the proposition of defendants’ counsel and all reasonable inferences deducible therefrom, to their simplest form of expression, and to their last analysis: Inasmuch as the discharge of the prisoner under section 4036 showed that there was “no probable cause for charging the prisoner therewith,” and as the magistrate. had certified that there was “probable cause for the prosecution,” that therefore there were at the time of the entry on the docket aforesaid, two probable causes simultaneously existing, one that the prisoner was not guilty; the other that he was! This result has rather the appearance of being a reductio ad absurdum. But
An earlier authority states the doctrine more tersely: “For the letter killeth, but the spirit giveth life.” [2 Cor., 3:6.]
2. Under section 4036, supra, as well as under the authorities in this State, the discharge of the plaintiff established
“In our opinion, that reasonable and probable cause which will relieve a prosecutor from liability, is a belief by him in the guilt of the accused, based upon circumstances sufficiently strong to induce such belief in the mind of a reasonable and cautious man.” [Vansickle v. Brown, 68 Mo. loc. cit. 635.]
Something more than bare suspicion or surmise is necessary as a basis of defense against an action for damages in a case like the present one. [McGarry v. Railroad, 36 Mo. App. loc. cit. 347.]
In order to support such an action as that of the case at bar, two ingredients must come together: first, malice on the part of the prosecutor; second, the want of probable cause for-the prosecution. Absent either of these, the action for malicious prosecution fails.
But where you establish proof of want of probable cause, there the jury may infer malice from the facts which go to make up such proof of such want. And where there is affirmative proof of the want of probable cause, then a defendant can be called on for his defense. [Casperson v. Sproule, supra; Hickam v. Griffin, 6 Mo. 37; Williams v. Vanmeter, 8 Mo. 339; Callahan v. Caffarata, 39 Mo. 136.] And it has been ruled that whenever a prosecution is shown to have been made without probable cause, there the burden is cast upon the defendant’s shoulders to show want of malice. [Torsch v. Dell, 88 Md. 459; 19 Am. and Eng. Ency. Law (2 Ed.), 702.] In an action like this one the plaintiff was nonsuited and commenting on such nonsuit Andrews, L, observed:
“The court was not justified in nonsuiting the plaintiff if there was any evidence of the want of probable cause for causing his arrest and imprisonment, or unless the case upon the whole proof was such that a verdict for the plaintiff upon that*75 issue would have been set aside by the court as against evidence (Masten v. Deyo, 2 Wend. 424; Davis v. Hardy, 6 B. & C. 225). If the evidence on the -part of plaintiff would have justified the jury in finding that the defendant acted without probable cause, then, although the proof on the part of the defendant tended to the opposite conclusion, the nonsuit was erroneously granted. There was no independent or conceded fact shown on the part of the defendant which, admitting the case made by the plaintiff, established the existence of probable cause. In considering the propriety of the nonsuit, the plaintiff is entitled to the concession that the facts existed as they appear in the evidence on his part, and upon these facts, aided by any fact favorable to the plaintiff proved by the defendant, the right of the court, to nonsuit is. to be determined.” [Carl v. Ayers, 53 N. Y. 14.] But this inference which the jury may draw is one of fact and not of law. Proof of malice does not prove want of probable. cause. “Malice, however, need not be proved by direct and positive testimony, but may be inferred from the facts which go to establish the want of probable cause; and this is all that is meant when it is said that malice may be inferred from want of probable cause.” [Sharpe v. Johnston, 59 Mo. loc. cit. 575-6.]
Malice, like its congener, fraud, poses in such a multitude of attitudes, assumes such a variety of shapes, manifests itself in such “Protean transformations,” that were direct proof of its presence required at a certain time and place, it could always establish the favorite defense of the elder Weller, an alibi.
Eor this cause it is that courts permit an infinite variety of circumstances and of circumstantial evidence to be adduced to show the cloven foot of malice. This thought will more fully be developed later on; but before reaching that point, it is well enough to quote, en passant, a description of malice as found in the familiar lines:
“Damn with faint praise, assent with civil leer, And without sneering teach the rest to sneer.”
“Envy, malice and all uncbaritableness.”
But malice, in order to meet tbe requirements of an action- like tbe present, need not be of sucb a pronounced type as the above quotations would indicate; a lighter variety of tbe species will answer, as later developments hereafter will disclose. And it has frequently been ruled in this State that a defendant will be held responsible, not only for what facts be Tenew when be instituted tbe prosecution, but for all other facts pertinent to such prosecution, which he could by due diligence have ascertained prior to putting tbe machinery of tbe criminal law in motion. [Hill v. Palm, 38 Mo. 13; Sappington v. Watson, 50 Mo. 83; Sharpe v. Johnston, 59 Mo. 577; Ibid v. Ibid, 76 Mo. 660.] And of course the obvious deduction from tbe just stated premise and the just cited and tbe accompanying and supporting authorities, give origin to this indubitable conclusion:
That any facts a defendant in a suit for malicious prosecution could by proper diligence have ascertained, prior to causing the arrest of tbe accused, will be regarded in the same light, and such defendant held equally responsible as if he had actually ascertained such facts prior to such prosecution. And this question of probable cause is a mixed one of law and fact; the duty devolves on the jury to determine whether the circumstances are true or not; and on the court to determine whether they amount to probable cause. “Regularly, tbe facts material to this question are first to be found by tbe jury, and tbe judge is then to decide, as a point of law, whether tbe facts, so found, established probable cause or not.” [2 Q’l’f Evid. (14 Ed.), sec. 454; 1 Hilliard, Torts (4 Ed.), 481.] But even where probable cause is shown by refusal of the magistrate to commit, still, all reasonable inferences of malice to be drawn therefrom, may be rebutted, to use the compendious statement of Hough, J., speaking for this
Bearing in mind the principles announced in the foregoing authorities, and quotations therefrom, let us examine the facts preserved in order to determine whether the trial court ruled correctly in taking the case from the jury. That probable cause was wholly lacking in this case is shown prima facie by the discharge of the accused. This alone would call on defendants for their defense; and with nothing introduced by them in evidence would authorize the matter to be submitted to the jury, under appropriate instructions, to determine whether they would, from the facts showing a want of probable cause, draw an inference of malice, and thus furnish the other ingredient necessary to make up the component parts of an action for malicious prosecution. And “if want of probable cause is made out, it is hardly possible that any difficulty can occur in regard to the question of malice.” [Hamilton v. Smith, 39 Mich. loc. cit. 229, and cas. cit.] In one of the cases there cited, Mr. Justice Story said:
“Malice may not only be presumed from the total absence of probable cause; but also from gross and culpable negligence in omitting to make suitable and reasonable inquiries.” [Wiggin v. Coffin, 3 Story C. C. 1.]
Did defendants, or either of them, or those acting under them, make such suitable and reasonable inquiries?
Among such inquiries would be: One as to whether the accused was a person of good character in the community
No such inquiries were made nor attempted to be made either in Springdale, Arkansas, nor Scott county, Missouri, by any one of the hired or unhired attaches of the Mulholland Banking Company, or of the other defendants; Kinney, the detective for the railroad, never made any such inquiries, nor did he, of course, tell Mulholland he had made them, nor did Mulholland tell Sherman that Kinney had made such inquiries. Nor were such inquiries made by Hughes, the improvised officer, nor by his confrere Gorman,, nor of Senator Marshall, nor of the station agent who pointed out Stubbs to Hughes, nor even of Stubbs himself; and such inquiries were “ascertainable facts,” having a direct and pertinent bearing on the question of probable cause.
Whenever the inquiry is, Is there probable cause for the institution of this prosecution? there the character or reputation of the proposed accused is an important factor in determining that point and answering that inquiry; and this is true whether such character, to-wit, reputation, be good or bad. It needs scarcely be said that abundant authority supports this position.
Thus it is said by Chief Justice Shaw in Bacon v. Towne, 4 Cush. 217: “The same facts, which would raise a strong suspicion in the mind of a cautious and reasonable man, against a person of notoriously bad character for honesty and integrity, would make a slighter impression if they tended to throw a charge of guilt upon a man of good reputation.”
Commenting on this statement of the law the Supreme Court of Massachusetts observes:
“In a suit of this kind, where the prosecution complained of was for an offense implying moral turpitude, the plaintiff’s general reputation at the time of the prosecution, if the defendant was where he would be likely to know it, is*79 always involved in the issue, and the defendant may properly be permitted to show that it was bad.
“We see no good reason why the plaintiff should not be permitted, on the other hand, to show affirmatively that it was good. It is true that every one is presumed to be of good character until the contrary appears, and this presumption ordinarily saves the necessity of proof. Indeed, in civil cases, as a general rule, evidence of reputation is not competent upon a question as to liability for a particular act. But whenever character is in issue, the rule is different. One charged with a crime is not obliged to rest upon a presumption of good character. In favorem Ubertwtis, he may prove the fact, if he can, by a weight of evidence far more effective than any mere presumption. A plaintiff in a suit for a malicious prosecution upon a criminal charge has the burden of proving that the prosecution was without probable cause. In defending’against the prosecution he would have had the right to show his good reputation, although his character was not attacked otherwise than incidentally by the prosecution itself. The same incidental attack upon his character necessarily appears in the suit for the malicious prosecution. To prove that the attack was originally made without probable cause, we think he should be permitted to show his good reputation known to the defendant when the prosecution was commenced.” [Mclntire v. Levering, 148 Mass. 546.]
Such is the doctrine also of this court. [Gregory v. Chambers, 78 Mo. 294; Peck v. Chouteau, 91 Mo. 138; to the like effect see Woodworth v. Mills, 61 Wis. 44; Ross v. Innis, 35 Ill. 487; 14 Am. and Eng. Ency. Law, 59, and n.; Newell on Malic. Pros., 465, et seq.]
And though plaintiff did not live in the vicinity of the residence of defendants; in fact, lived when he returned to Scott county some three hundred miles distant from Kansas City, and when in Springdale, Arkansas, some two hundred miles perhaps distant, yet, as it was the bouriden duty of de
It is true, Kinney stated he was not employed by Mulholland, that he volunteered his services; but Mulholland accepted those services, accepted his advice, and fully acted on that advice, and having done so, Mulholland is estopped to deny that Kinney was his agent.
There are other inquiries Kinney should have made and other facts he should have disclosed to his principals, Mulholland and the bank: W. Gr. Thompson, whose name was forged on the pay check, was a co-employe of Kinney, a tie and labor inspector for the Atchison, Topeka & Santa Ee Railroad Company, and he found out when he went down to Springdale, that Thompson, at the place of his residence, Springdale, had been a partner of plaintiff, and yet he made no inquiries of Thompson either orally or by letter in regard to plaintiff, although he had the pay check with him, the indorsement on which had been forged and notwithstanding that Thompson had written Kinney from Springdale the following letter:
“I have just had a talk with the P. M. at this place and he tells me you have some trace of the parties who stole my checks and vouchers. I have no idea myself who the parties could be, as I am away from home most of my time. My wife tells me the parties who cashed one of my checks at Kansas City had numerous letters and had my pass. I must say, if this be true, he has stolen them or had some printed, for I*81 do not let any person handle my mail or passes. I could have had them stolen from my coat pocket some day in the hot weather while my coat was not in use. I never missed any of my letters or passes but they could have been used and I would not have missed them. Have hunted up all the letters pertaining to my lost checks and handed them to the P. M. I hope you will succeed in locating the thief. Anything I can do in this matter will be pleased to do so.
“Yours truly,
“W. G-. Thompson/’
Kinney said he made a report to Mulholland after he had made the trip to Springdale; that he had such letter at the time he made such report, and that such report was made about a week before plaintiff’s arrest occurred (which occurred on April 23), but he could not remember whether he told Mulholland about the contents .of the letter as to Thompson, not missing any letters or passes or not. But inasmuch as Kinney was Mulholland’s agent, in the absence of countervailing evidence it will be presumed that he communicated to his principal the contents of the letter. [Breckinridge v. Insurance Co., 87 Mo. loc. cit. 71, and cas. cit.] And, besides, notice to the agent is notice-to the principal (Mechem on Agency, sec. 718); and the negligence of the agent in failing to communicate all the facts in the case of which he becomes possessed, becomes the negligence of the principal.
The reason the disclosure of the contents of the letter of Thompson to Kinney about not having lost any passes or letters was pertinent and important, was owing to the fact that Mulholland had testified that: “A young man presented a check there to be cashed — that was part of our business; it was for $75, an Atchison, Topeka & Santa Ee Eailroad time check; I says that is a part of our business but we don’t know you, if you will identify yourself we will cash the cheek for you;
And the disclosure of the letter’s contents was pertinent further, because it contained a proffer by Thompson to Kinney, to assist the latter “locating the thief/’ of which proffer Kinney never availed himself; nor did he avail himself of the further fact that he learned down at Springdale that Thompson then was'a partner of plaintiff; and he already knew Thompson was a co-employe with him in the railroad company, and yet neither Kinney nor Mulholland instituted any inquiry of Thompson as to whether the signature indorsed on the pay check was that of plaintiff or not. And yet the testimony of Thompson shows in the clearest manner possible that had inquiry been made of him, he would have told Kinney or told Mulholland that that signature was not that of plaintiff, and would thus have prevented a groundless prosecution.
The failure, therefore, on the part of Mulholland and of his lieutenants to make inquiries of W. GL Thompson, plaintiff’s partner, when inquiries were so easy, and ascertainment of the truth so sure, was therefore the failure to make suitable and reasonable inquiries, and therefore, under the precedent authorities, proof of gross and culpable negligence, and, therefore, proof of malice. [3 Story, supra.]
Eor, in order to show malice of the sort sufficient to maintain an action like that in the case at bar, it does not need to be proved that there was hatred or ill-will, malevolence, spite or revenge on the part of the defendant towards the plaintiff, (though such may actually exist and be proved); if the prosecution is reckless and unreasonable and instituted with a
Touching the duty of the jury in this regard, and speaking of a case where the court had usurped their functions, as in the case at bar, Parke, J., spoke in the following terms: “But when there is no reasonable or probable cause, it is for the jury to infer malice from the facts proved. That is a question in all cases for their consideration; and it having in this instance been withdrawn from them, it is impossible to say whether they might or might not have come to the conclusion that the arrest was malicious. It was for them to decide it, and not for the judge.” [Mitchell v. Jenkins, 5 B. & Ad. 588.]
3. But it is urged that as “Mulholland laid all the information he had before his general attorney, Sherman, and the latter advised the prosecution, this is of itself a complete defense.” In the first place, it is not proven that Sherman was an attorney in good standing, “competent to give advice in legal matters.” [Newell, Malic. Pros., 314; Murphy v. Larson, 77 Ill. loc. cit. 175.] In this State, where a license to practice is obtained almost for the asking, it by no means follows because a man has been licensed to practice law, that, therefore, he is qualified to give advice in a matter of such pith and moment as pertains to arresting a suspected man on a criminal charge; and this is especially the case where circumstances present themselves such as this record discloses.
In Roy v. Goings, 112 Ill. 656, in an action .of like sort as this one, Walker, J., said: “We are not prepared to hold that the mere fact that an attorney holding a commission as State’s attorney, must be held to be an attorney in good standing for skill, prudence and fairness.”
We take the same view of the law in this case. But even if Sherman, in addition to having been a regularly licensed
Then Mulholland, after Kinney had testified, amended his testimony by going back on the stand and swearing: “My recollection is one of those two things; he either told me. he saw him or that my description answered the description of Mr. Stubbs; I am not clear as to the positive statement that he had seen Mr. Stubbs or whether he answered the description.” And even if Sherman could be regarded as one fully qualified, etc., still, the defense incident to such advice being given, etc., can not be raised here, because of Mulholland’s failure to use such reasonable and suitable diligence in ascertaining the facts in the case as would have resulted in materially altering the views of any one competent to advise upon the course to be pursued; for instance in failing, through his agents, to make inquiries as to Stubbs’s good character. [Hill v. Palm, supra, loc. cit. 21.]
And as to Lowe, the prosecuting attorney, the like line of remark applies to him as to Sherman; and besides, Lowe was only seen for a moment,, as he was about to go into the trial
4. But in the sense above mentioned, malice is disclosed by this record in other ways than those already noted. Under statutory provisions heretofore cited, a warrant could not be executed outside of the county where issued, except one of those provisions contained in section 4204, Revised Statutes 1889, were complied with. This section was section 1729, Revised Statutes 1879, was amended to its present shape as it now stands, by the Laws of 1867, p. 185, by adding to the statute (Gen. Stats. 1865, sec. 5, ch. 209, p. 833), the provision whereby a capias could be authenticated by adding the certificate and seal of the county clerk* to the writ in the county of its issuance. But the section ás it formerly stood, containing a provision for authenticating the capias by indorsement, etc., has been on our statute books ever since 1855. [R. S. 1855, p. 1161, sec. 5.]
And both provisions of the statute were passed upon by this court in State v. Dooley, 121 Mo. 591, and there held that a warrant not authenticated in one of the two ways mentioned, gave no authority to the officer holding it, to make an arrest in another county. But this statute, though of such long standing, it seems was wholly wnhwown either to court or counsel in this case; and this appears from the character of the objections made by plaintiff’s counsel to the admission in evidence of the appointment of Hughes as deputy constable, and the reply of the court to such objections, which were:
“The plaintiff objects to the introduction of said commission for the reason that it is incompetent and immaterial and not authorized by law; the constable had no right to give this man a commission to go outside of his county and serve a warrant.
“By the Court: You don’t dispute the right the constable had — had a right to be appointed deputy constable; let it go to the jury for what it is worth.”
But note further: Kinney had been down to Springdale, Arkansas, and what he saw, said and did, have already been related. On his return to Kansas City, Kinney made report to Mulholland, repeating what he had said and inquiries he had made, but even he did not regard what he had learned sufficient to arrest a man on, so advised if defendants thought they could positively identify the man, that they would send one of their number to Scott county with the discretionary power to arrest plaintiff or not to arrest plaintiff, as he should determine. On this point Kinney testified that on his return from Springdale he reported to defendant Mulholland as follows: “I am sufficiently satisfied of it that I feel some one
Mulholland pursued this advice, and at his instance, it seems, Barber was willing to swear at a venture that Stubbs was■ the man who forged the name of W. G. Thompson on the paycheck; but this was done with the distinct understanding that Hughes, if, on going down to Blodgett, in Scott county, should be satisfied that Stubbs was not the party who forged Thompson’s name, then the warrant ivas not to be used; otherwise it was.
So that Hughes, being armed with discretion to use the warrant or not, as he saw fit, to all intents and purposes turned the warrant into a searchwarrant for a man!
This course of conduct presents in and of itself sufficient evidence of malice of the sort requisite to maintain an action of this nature, and this, too, aside from the prima facie case previously made by plaintiff; by establishing want of probable cause.
And this view of the grossly negligent, reckless and wanton course displayed in this prosecution is sharply accentuated by the circumstances that from that June day (June 13, 1896) when a stranger, five feet, seven or eight inches high, with dark complexion, a dark mustache and dressed like a railroad clerk, came into Mulholland’s bank, stayed there about ten minutes, showed the check indorsed “W. G. Thompson,” and letters directed to ~W. G. Thompson, and a railroad pass also bearing W. G. Thompson’s name, over ten months had elapsed before Hughes assumed to arrest Stubbs as that man. But more than that, when Stubbs was taken on the worthless
This conduct, considering the fact that Hughes had no authority at all to put Stubbs in jail, also shows a reckless disregard of Stubbs’s rights, which is wholly inconsistent with anything except malice as heretofore defined.
5. But recurring to the question of Sherman’s advice, it is not seen how the advice of an attorney could avail anything here, or afford any shield of defense to his advisee, for the reason that the sole question to be solved in this case, was the identity of the man who did the forgery. Of course, however, on such a question, the advice of a lawyer was no'better than that of a layman.
6. Should it be urged that if the warrant was void by reason of the fact that it was not properly authenticated, this reply can be made thereto: No such point was raised before the justice and plaintiff submitted to the jurisdiction of the magistrate, and he went on and adjudged the case and discharged plaintiff, and it certainly does not lie in the mouths of defendants to question that jurisdiction after they have invoked it. But even if the magistrate had no jurisdiction whatever, his judgment is just as good for the purposes of an action for malicious prosecution as if plenary jurisdiction existed.
On this point, Prof. G-reenleaf observes:
“Nor is it material that the plaintiff was prosecuted by an insufficient process, or before a court not having jurisdiction of the matter; for a bad indictment may serve all the purposes of malice as well as a good one, and the injury to the party is not on that account less than if the process had been regular, and before a competent tribunal.” [2 Glf. Evid. (14 Ed.), sec. 449.] Citing in support of this statement a number of*89 authorities: Stone v. Stevens, 12 Conn. 218; Morris v. Scott, 21 Wend. 281; Hays v. Younglove, 7 B. Mon. 545.
7. The circuit court did not err in rejecting the testimony of Margolious, which testimony evidently and strongly tended to establish the entire innocence of plaintiff, by showing that another person, to-wit, one Mason, did the forgery in question, and was in the habit of doing such forgeries. This testimony was properly rejected because the innocence of one who sues for malicious prosecution is not at all involved in such suit; the, real question being whether the prosecutor had probable cause for believing the accused guilty. . [Skidmore v. Brieker, 77 Ill. 164; Carl v. Ayers, 53 N. Y. loc. cit. 17, and cas. cit.]
8. In conclusion, in cases of this sort, this court has always ruled that where there is evidence of malice or want of probable cause, there, under proper instructions, those questions are for the jury; and it is error to refuse to submit them to the jury. [Moody v. Deutsoh, 85 Mo. 237; Casperson v. Sproule, 39 Mo. 39; Hill v. Palm, 38 Mo. 13.] In Casperson’s case, this court reversed the judgment because the trial court, in a case of malicious prosecution, gave a peremptory instruction to find for defendants, and in Hill’s case, this court ruled that the trial court properly refused, in such a case as this, to give an instruction to find for defendant; saying, that questions of malice and want of probable cause were lor the jury. Similar rulings are made elsewhere. [13 Ency. of Pl. and Pr., 473; Hamilton v. Smith, and other cas. cit., supra; McLeod v. McLeod, 73 Ala. 42.]
Eor the error of giving the peremptory instruction aforesaid, the judgment will be reversed and the cause remanded.