Opinion
NOTE: Opinion filed at October Term, 1931, April 2, 1932; motion for rehearing filed; motion overruled at April Term, May 27, 1932.
1. MALICIOUS PROSECUTION: Probable Cause. A necessary element of a suit for malicious prosecution of either a civil or criminal action is want of probable cause for the prosecution.
2. ____: ____: Judgment Conclusive. The rule in Missouri is that a judgment in favor of the plaintiff is conclusive evidence for probable cause for bringing the action, in the absence of a showing that the judgment was procured by fraud, perjury or unfair means.
3. ____: ____: Judgment Set Aside. Although a judgment in an action complained to be malicious was subsequently set aside because of erroneous instructions, nevertheless it remains conclusive of probable cause for bringing the action in the absence of a showing that the judgment was procured by fraud, perjury or unfair means.
4. ____: ____: ____: Burden of Proof. The burden of showing that such judgment was procured by fraud, perjury or unfair means is on the plaintiff suing for malicious prosecution.
5. ____: ____: Second Judgment. Where a judgment was rendered against defendant in a suit claimed to be malicious, which judgment was afterward reversed and a new trial granted and a judgment in favor of defendant was rendered, such second judgment did not tend to show that the judgment against defendant in the first instance was procured by false and fraudulent evidence.
6. ____: ____: ____. Before the defendant could make out a case of malicious prosecution he would have to produce additional evidence of malice and want of probable cause; the fact that the jury disbelieved the evidence offered against him in the prosecution would not tend to show that such evidence was knowingly fraudulent and false.
Appeal from Circuit Court of St. Louis County. — Hon. Jerry Mulloy, Judge.
REVERSED.
Jacob M. Lashly, A.E.L. Gardner and Holland, Lashly Donnell for appellant.
(1) The court erred in refusing to give the peremptory instruction asked by appellant at the close of all the testimony and refused by the court. Under the allegations of the petition in this case, this is an action for malicious prosecution, and not an action for wrongful attachment. It was essential, therefore, for respondent to prove that the said attachment suit, in which St. Louis Union Trust Company was plaintiff and Henry D. Laughlin was defendant, was instituted by said Trust Company without probable cause. As the testimony of the respondent definitely showed that the first trial of said attachment suit resulted in a verdict and judgment in favor of said Trust Company and against said Henry D. Laughlin, it conclusively showed that said attachment suit was not brought by said Trust Company without probable cause. Wilkinson v. McGee, 265 Mo. 574; Boogher v. Hough et al., 99 Mo. 183; Wilcox v. Gilmore, 8 S.W.2d 961; Crescent City v. Butchers Union, 120 U.S. 141, 30 L.Ed. 614. (2) The court erred in refusing to give the peremptory instruction asked by appellant at the close of all the testimony and refused by the court. Even if it be held that this action was one for wrongful attachment, and not an action for malicious prosecution, said peremptory instruction should have been given, because respondent utterly failed to prove that he sustained any actual damages as a direct result of the institution or the prosecution of the attachment suit. In a wrongful attachment suit a plaintiff must prove not only that the attachment in question was wrongfully brought, but also that he sustained actual damages as a result thereof. As the attachments in the attachment suit were issued without bond against Henry D. Laughlin, as a nonresident, all the latter had to do in order to secure a dissolution of the attachments was to file an answer and request such dissolution. The attachment suit was filed on May 17, 1917, and Henry D. Laughlin filed an answer therein on the 14th day of October, 1918. (a) Simultaneously with doing so, he could, for the asking, have secured a dissolution of the attachments, but he did not move for such dissolution until October 26, 1923. R.S. 1909, sec. 2298. (b) The law is that it was the duty of Henry D. Laughlin, defendant in the attachment suit, to so move for a dissolution of said attachments when he filed his answer, and thus escape any "avoidable consequences." 17 C.J. 769, 770; Fullerton v. Fordyce, 144 Mo. 519; Harrison v. Railroad Co., 88 Mo. 625; Haysler v. Owens, 61 Mo. 270; State ex rel. v. Powell, 44 Mo. 436; Fisher v. Goebel, 40 Mo. 475; Harrison v. Western Union, 187 Mo. App. 580; Boggess v. Met. St. Ry. Co., 118 Mo. 328; Pittman v. West, 198 Mo. App. 92; Donovan v. Gibbs, 268 Mo. 279; Sargent v. Fuller, 132 Pa. 127, 133; Blanchard v. Brown, 42 Mich. 46, 49; W.B. Morse Sons v. Lockwood, 295 F. 936. (c). The law is that the only actual damages a plaintiff in a wrongful attachment suit may recover are such reasonable expenses as are incurred in connection with promptly securing a dissolution of the attachment, and there was no testimony in the case that respondent sustained any damages prior to the filing of said answer in the attachment suit. State ex rel. v. Am. Surety Co. of N.Y., 210 Mo. App. 203; State ex rel. v. Parson, 109 Mo. App. 432; State to the Use of v. Fargo, 151 Mo. 280; State v. McHale, 16 Mo. App. 478.
Wurdeman, Stevens Hoester and Rassieur, Long Yawitz for respondent.
(1) There is no conclusive presumption of probable cause with reference to an action for malicious prosecution even though at the first trial of the original case a verdict was rendered against the then defendant, where it appeared from the testimony that such trial was attended by erroneous instructions given on request of the then plaintiff and that a new trial was granted by reason thereof resulting in a final verdict for the then defendant, or where it appears that the then plaintiff testified falsely or knew the defendant to be innocent of the charges alleged. The question of probable cause is one for the jury, unhampered by any presumption whatsoever for or against either party. Hanser v. Bieber, 197 S.W. 68; Steppuhn v. Chicago G.W. Railroad Co., 204 S.W. 581; Foster v. Chicago B. Q. Railroad Co., 14 S.W.2d 571; Bowers v. Walker, 182 S.W. 120; March v. Vandiver, 181 Mo. App. 284; Cramer v. Barmon, 136 Mo. App. 675; Sharpe v. Johnston, 76 Mo. 670; Moffatt v. Fischer, 47 Iowa 474. (2) The measure of damages of wrongful attachment is entirely different from that of malicious prosecution of a wrongful attachment. As to the first, the measure is the amount necessarily expended to obtain a dissolution of the attachment and direct losses up to such dissolution. As to the second, the measure is adequate compensation covering all the elements of injury, including, among other things, attorneys' fees for the entire case, expenses for traveling, hotel bills while attending trial, interest on all moneys attached, loss of time, deprivation of use of property, mental pain and anxiety caused by the disgrace accompanying the prosecution, injury to reputation and business, etc., and punitive damages if the jury sees fit, which under the facts of the case should serve as a proper punishment to the defendant. Walser v. Thies, 56 Mo. 93; 38 C.J. Malicious Prosecution, p. 445, no. 99; p. 447, no. 100; p. 448, no. 102; Rivers v. Norman, 179 S.W. 990; 6 C.J. Attachment, p. 540, no. 1322; Carp v. Ins. Co., 203 Mo. 300; Ruth v. St. Louis Transit Co., 98 Mo. App. 18. (3) Where one attaches another's property and that other is ignorant of ready means by law provided for the dissolution of the attachment, and that other during the pendency of said attachment entreated the attaching plaintiff time and again to dissolve the same or to at least release part of the property from the seizure, but the attaching plaintiff instead of informing the defendant of the simple remedy, takes advantage of defendant's ignorance and embarrassment and seeks to profit thereby, that one will not be heard to complain on appeal that the attachment defendant as a matter of law is precluded by his failure to move the dissolution — the question of duty and negligence under the evidence being one for the jury, and having been decided against the attaching plaintiff. King v. Railroad Co., 263 S.W. 831; Montague v. Missouri K.I. Ry. Co., 264 S.W. 817; State ex rel. Mechanics' Am. Natl. Bank v. Sturgis, 208 S.W. 462; Surbeck v. Surbeck, 208 S.W. 647. (4). Where the principal issue involved is one of fact which is peculiarly within the knowledge of the prosecuting party, and the question before the jury is the existence or nonexistence of that particular fact (the prosecuting party and the prosecuted party clashing directly on that point), and where the evidence shows that this fact was not related to attorneys by the prosecuting party, and where the evidence further fails to show what was told the attorneys in the seeking of advice, then advice of counsel is totally irrelevant and immaterial and is not available as a defense to a suit for malicious prosecution, for advice of counsel can only be given with relation to matters of laws, not with relation to matters of fact, and only when there has been a full and fair statement of the facts to the counsel, and a showing to the jury of just what was told to the counsel. March v. Vandiver, 181 Mo. App. 285; Webb v. Byrd, 243 S.W. 405; Bowers v. Walker, 192 Mo. App. 242; Burris v. North, 64 Mo. 428; Hill v. Palm, 38 Mo. 14; Hardy v. Lewis Automobile Co., 297 S.W. 169; Lehmer v. Smith, 284 S.W. 169.
Action by Henry D. Laughlin, plaintiff, against the St. Louis Union Trust Company to recover damages for alleged malicious prosecution of a civil suit aided by attachment. The jury returned a verdict for plaintiff for $7500 actual and $15,000 punitive damages. Defendant appealed.
The facts out of which this malicious prosecution suit arose are, in substance, as follows:
On May 17, 1917, the trust company brought suit in the Circuit Court of St. Louis, County, against Laughlin on a $5000 note with attachment in aid. The ground for the attachment was the nonresidence of Laughlin. At the direction of the trust company all of the real estate owned by Laughlin and located in St. Louis and St. Charles Counties was attached. On October 14, 1918, Laughlin filed answer to the suit. In December, 1919, the cause was tried and resulted in a verdict in favor of the trust company and against Laughlin in the sum of $8,403.45. Thereafter on motion of Laughlin the trial court set aside this verdict and granted a new trial because of the giving of erroneous instructions to the jury. The trust company appealed to the Supreme Court from the order granting a new trial. The Supreme Court affirmed the action of the trial court in granting a new trial, and remanded the cause on the ground that Instructions 4 and 5, given at the request of the trust company either ignored or wholly misconceived the legal effect of Laughlin's defense that he endorsed the note as an accommodation to the trust company. [St. Louis Union Trust Company v. Laughlin, 254 S.W. 844, 846.] After the cause was remanded, and on October 26, 1923, Laughlin filed a motion to dissolve the attachment. The trial court made an order to the effect that the attachment would be dissolved unless the trust company, within seven days filed an attachment bond in the sum of $14,520. The trust company failed to give bond and the attachment was dissolved on November 3, 1923. Thereafter the cause was again tried on the merits and on December 2, 1923, a verdict and judgment was rendered in favor of Laughlin. The trust company filed a motion for new trial which was overruled on February 2, 1925, and the judgment in favor of Laughlin and against the trust company became final.
The first contention of the trust company in the instant case is that the trial court erred in refusing to give its demurrer to the evidence.
It is settled law that a necessary element of a suit for malicious prosecution of either a civil or criminal action is want of probable cause for the prosecution of such civil or criminal action. [Wilcox v. Gilmore, 320 Mo. 980, 8 S.W.2d 961, 962, and cases cited.] Want of probable cause being an indispensable element of an action for malicious prosecution, the question raised by the demurrer to the evidence is whether or not there was any substantial evidence tending to show the trust company did not have probable cause for prosecuting the attachment suit. If so, the demurrer was properly overruled. If not, the demurrer should have been sustained.
In this connection the trust company contends that the judgment in its favor in the first trial of the attachment suit is conclusive evidence of probable cause for bringing such action although the judgment therein was set aside and a judgment rendered in favor of Laughlin on a retrial of the case. The rule applicable to this contention is stated in 18 Ruling Case Law, page 39, section 22, thus:
"Recovery in the court of the first instance, though the judgment is subsequently set aside and the final trial results in favor of the party now plaintiff, has by some courts been held conclusive on the question of the presence of probable cause, but in others it is held that the judgment may be impeached by proof that it was obtained by fraud or perjury."
The question was before this court in the recent case of Wilcox v. Gilmore, 320 Mo. 980, 8 S.W.2d 961. We there said:
"The weight of authority is that a judgment or finding in favor of plaintiff in the original action is conclusive evidence of probable cause, or estops defendant therein from denying the existence of probable cause, in the absence of fraud or other improper means used in obtaining the judgment, and it has been held that the conclusiveness of the judgment on the question of probable cause is not affected by the fact that it is erroneous, or by the fact that it; reversed on appeal to a higher court, or set aside for irregularity. [38 C.J. 419.] In the Missouri decisions, such prior judgment is generally spoken of as prima-facie evidence of probable cause, which may be rebutted or overthrown by evidence that such judgment or commitment was obtained by false or fraudulent testimony, or other improper means, or that the prosecutor himself did not believe the facts alleged in support of the prosecution. [Wilkinson v. McGee, 265 Mo. loc. cit. 586, 178 S.W. 471; Boogher v. Hough, 99 Mo. loc. cit. 185, 186, 12 S.W. 524; Peck v. Chouteau, 91 Mo. loc. cit. 149, 3 S.W. 577, 60 Am. Rep. 236; Sharpe v. Johnston, 76 Mo. loc. cit. 670; Firer v. Lowery, 59 Mo. App. loc. cit. 97.]
"The reason of this rule is apparent. If probable cause consists of a belief in the charge or facts alleged, based on sufficient circumstances to reasonably induce such belief in a person of ordinary prudence in the same situation, then proof of a judgment, whether based on the verdict of a jury or the finding of the trial judge, stands as undisputed evidence of the existence of probable cause, unless it be further shown that the judgment was procured by fraud, corruption, false testimony, or other improper means, or that those responsible for the prosecution did not themselves believe the facts and circumstances alleged and brought forward to induce the judgment. Nor does such a judgment cease to be evidence to the existence of probable cause merely because it is subsequently reversed on appeal."
While the authorities are not in full accord as to the conclusive effect of a judgment in favor of a plaintiff in the original action on the question of probable cause, the rule in Missouri is that such a judgment is conclusive evidence of probable cause for bringing the action, in the absence of a showing that the judgment was procured by fraud, perjury or other unfair means, or that the parties responsible for the prosecution of the action did not believe the testimony which induced the judgment.
It is not disputed that Laughlin endorsed the $5000 note in question, on which one Kern was principal. Neither is it disputed that Laughlin was a nonresident of the State at the time the attachment suit was brought against him. The controverted question at the trial of the attachment suit was whether or not Laughlin was liable on the note. That question was determined in the first trial of the attachment suit by a verdict and judgment in favor of the trust company and against Laughlin for the full amount due on the note. [3] This judgment although subsequently set aside because of the giving of erroneous instructions nevertheless remained conclusive evidence of probable cause for bringing the attachment suit, in the absence of a showing in the instant case that such judgment was procured by fraud, perjury or other unfair means, [4] and the burden was on plaintiff to so show. [Authorities, supra.]
On examination of the record, we do not find any substantial evidence that the judgment rendered in favor of the trust company in the first trial of the cause was procured by fraud, corruption, perjury or other unfair means.
Respondent contends that this judgment was not conclusive on the question of probable cause, (1) because it was induced by erroneous instructions, and (2) because it was procured by false testimony.
Although the judgment rendered in favor of the trust company in the first trial of the cause was subsequently set aside because of the giving of erroneous instructions, it was nevertheless conclusive evidence of probable cause in the absence of a showing that it was procured by fraud, corruption, false testimony or other unfair means. The fact that an erroneous instruction was given did not tend to prove that the judgment was obtained by fraud or any other improper or unfair means. The reversal of a judgment because of error committed during the progress of the trial, does not destroy the conclusive effect of the judgment on the question of the presence of probable cause.
In support of the claim that the judgment was procured by false testimony, respondent contends that the judgment in his favor in the second trial, demonstrates that the jury believed his evidence and disbelieved that offered by the trust company. [5] From this premise it is argued that the verdict in his favor in the second trial tends to show that the evidence of the trust company in the first trial was knowingly fraudulent and false. This is but another way of saying that the judgment against the trust company in the second trial is evidence of want of probable cause. Such is not the law. "That plaintiff in the suit complained of was defeated will not sustain an action without additional evidence of malice and want of probable cause." [6] [26 Cyc. 47 and cases cited in note; Stewart v. Sonnenborn, 98 U.S. 187, 25 L.Ed. 116; Boeger v. Langenberg, 97 Mo. 390, 397-8, 11 S.W. 223.] The correct rule is stated in 18 Ruling Case Law, 40, as follows:
"In civil actions also it is the general rule that the mere failure to recover does not evidence want of probable cause in bringing suit, since one may well have probable cause for bringing an action in which he is finally defeated. If failure to win were prima-facie evidence of want of probable cause, a plaintiff might be successful in a suit for malicious prosecution on the mere showing that his opponent had instituted an unsuccessful action against him, for malice may be inferred from the want of probable cause."
It is conceded that the judgment in the first trial was against respondent. As no substantial evidence was offered to overcome the conclusive effect of this judgment on the question of probable cause, no case was made for the jury.
The judgment is, therefore, reversed.
Since this opinion was written, it has been suggested to the court that respondent Henry D. Laughlin died after the argument and submission of said cause in this court. The judgment is therefore entered as of April 21, 1930, the day on which said cause was submitted. All concur.