51 Mo. App. 605 | Mo. Ct. App. | 1892
The action is for malicious prosecution. The plaintiff recovered a verdict and judgment. The defendant assigns for error the exclusion of legal evidence, and the refusal of a proper instruction offered by him, It is essential to an intelligent discussion of the questions thus presented to set out so much of the evidence as bears upon them.
The plaintiff’s wife and the defendant formed a .copartnership in 1886 by written articles. The object of the partnership was to conduct a barber shop under the Lindell Hotel in St. Louis. The shop had been conducted prior to that time by the plaintiff and one Dora, under the firm-name of Thomas & Dora. When the defendant became a partner of plaintiff’s wife, the sign was changed to Thomas & Co., but there was nothing to indicate to the outside world that the Thomas of Thomas & Co. was not the plaintiff, James P. Thomas, as he remained in the barber shop as before, representing .his wife, who was then and has ever since been a resident of Alton, Illinois. In March, 1885, one Rapier obtained judgment against the plaintiff, an execution was issued on this judgment, and the plaintiff’s interest in the barber shop sold thereunder on June 10, 1889. Possession of this interest was delivered to the purchaser, one Laughlin, who first put a watchman in charge, but afterwards withdrew the watchman and requested one of the employes in the shop to attend to his interests. The plaintiff remained in the shop claiming that, as the execution was directed against him, his wife’s interest did not pass by the sale; he did not, however, interfere with the property or money in the shop until the date hereinafter mentioned. Immediately after the sale the purchaser Laughlin and
The defendant, upon the trial of the case at bar, offered in evidence the record of a suit instituted by plaintiff and his wife against the defendant on October 7,1889, and charging the defendant with having wrongfully converted the property and business of theLindell Hotel barber shop to his own use on or about. August, 1889. The issues in that suit were referred to. a referee, who made a finding of the facts and his conclusions of law thereon, and final judgment was entered upon such finding in favor of .the defendant in the circuit court. The referee, among other things, found that the sheriff’s sale under the Rapier judgment was effectual to convey to the purchaser the interest of both plaintiff and his wife in the Lindell Hotel barber shop. He also found that such sale worked a dissolution of the partnership between the defendant and the plaintiff’s wife. On the objection of the plaintiff this record
The respondent contends that this finding and judgment were inadmissible in evidence, because they Were not pleaded by way of estoppel. It is difficult to comprehend how the defendant could have pleaded this record by way of estoppel, since it is not conclusive either way, either on the question of malice or that of probable cause, which are the only ingredients of this action. But, while the judgment was not conclusive on either of these questions, it was conclusive on the ownership of the $50 which the plaintiff took, and the taking of which gave rise to the prosecution forming the foundation of this action. The record of the judgment offered in evidence, while it did not show that the defendant was guilty of larceny in taking the money, did show that the plaintiff was estopped from disputing the title of the defendant to the money, and that the money was that of the defendant, and the plaintiff had no interest therein. Such a showing had a material bearing both on the question of malice and probable cause, because all of theffacts which led to the final judgment were then in existence, and were within the knowledge of both parties. It was not competent for the defendant to show, in support of probable cause, that the plaintiff was guilty of another and different offense than larceny (Hill v. Palm, 38 Mo. 13), but it was competent for him to show that the facts were such as justified the inference that the plaintiff was guilty of that offense, and that the defendanb acted in an honest reliance on such facts. Throughout the trial plaintiff was permitted to testify that the rights of his wife in the shop had not been foreclosed by the execution sale, and that he was rightfully in the shop as the representative of his wife, and that he rightfully took the $50,
The court on motion of defendant gave the following instruction: “By the term ‘malice,7 as used in the foregoing instruction, is meant a wrongful act, done intentionally without legal justification or excuse;, and by the term, reasonable or probable cause, as used in .said foregoing instruction, is meant a belief supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the accused is guilty of the offense with which he is charged.77
The court also gave on behalf of the plaintiff an instruction, defining probable cause almost in the ■identical words used in the above instruction. But the court declined to give the following instruction asked by the defendant, which refusal constitutes the second error -complained of: “The jurors are also instructed that if they believe and find from the evidence that at the time plaintiff made the instrument purportingto convey •an undivided one-half interest in the property and fixtures of the LindeU Hotel barber shop to his wife, he was in partnership with one Dora, under the name of Dora & Thomas; that no actual delivery of the said interest or property conveyed was, within reasonable time thereafter, made by ¡'plaintiff to his' wife, regard being had to the situation and character of the prop•erty, but that plaintiff thereafter continued in possession thereof down to the time of the levy of the execution on said property, which has been introduced in evidence; that, at and prior to the time at which he, plaintiff, executed said instrument of conveyance to his
No instruction was given by the court telling the jury what facts under the various hypotheses presented by the evidence would or would not amount to probable cause.
The law on this question is very simple, but its application to the individual case is often difficult. In Hill v. Palm, supra, Judge Wagner thus states the law: “The question of probable cause is composed of law and fact; it being for the jury to determine whether the circumstances alleged are true or not, and for the court to determine whether they amount to probable cause. It, therefore, falls within the province of the jury to investigate the truth of the facts offered in evidence, and the justice of the inference to be drawn from such facts, whilst at -the same time they/receive the law from the court, that according as they find the facts proved or not proved, and the inferences warranted or not, there was reasonable and probable ground for the prosecution or the reverse, and this rule holds, hoivever complicated or numerous the facts may he.” The learned judge, having thus stated what has unquestionably been the common-law rule all the time', immediately proceeds to make a seeming misapplication of it by saying, “the facts being contested, the court decided rightly in leaving the matter with the jury, with instructions as to what constitutes probable cause,” although in that case there was not even the vaguest legal definition of probable cause in any of the instructions given by the court, much less a submission to the jury for their finding of hypothetical facts, and the judgment of the court thereon as to whether such facts did or did not constitute probable cause. Ever since that decision was made, the courts of this state were engaged in a
But the refusal of the defendant’s specific instruction, submitting the facts for the finding of the jury which the defendant claimed, if found, did constitute probable cause, was error. There was evidence tending to prove every element contained in that instruction, and its unusual length was necessitated by the fact that the court excluded the record of the
The judgment is reversed and the cause remanded.