Opinion
No. 27693.
January 17, 1950.
APPEAL FROM THE CIRCUIT COURT OF JEFFERSON COUNTY, EDWARD T. EVERSOLE, J.
Charles H. Rehm, St. Genevieve, Raymond S. Roberts, Farmington, for appellant.
W. A. Brookshire, Columbia, for respondent.
This is a suit for damages for malicious prosecution. It was instituted by respondent as plaintiff against appellant as defendant in the Circuit Court of St. Genevieve County, Missouri, and later transferred to the Circuit Court of Jefferson County, where it was tried before the court and a jury, resulting in a verdict for $3,125 in favor of plaintiff and against defendant. Defendant appealed to this court.
Plaintiff's petition alleged that defendant maliciously and without probable cause made an affidavit and lodged a charge before Frank X. Siebert, Justice of the Peace of St. Genevieve County, Missouri, on February 1, 1943, charging that plaintiff did unlawfully and wilfully throw down and open a certain fence on the premises of Louis J. Ziegler and Harry J. Petrequin and leave said fence open and down, the fence being the property of the defendant; that defendant without good cause maliciously signed an affidavit; that the Justice issued a warrant on which plaintiff was arrested; that he was tried in February 1943 before the Justice of the Peace, and that defendant testified as a witness against plaintiff, but that plaintiff was acquitted by said Justice. Plaintiff prayed for $5,000 actual and $5,000 punitive damages.
The answer of defendant was a general denial coupled with allegations to the effect that defendant prior to the institution of said prosecution consulted a reputable attorney who advised defendant to lay all the facts before the Prosecuting Attorney; that defendant fully and fairly laid all the facts before the Prosecuting Attorney and at the request of the Prosecuting Attorney signed the affidavit and testified as to the facts; that defendant acted only on probable cause and in good faith and was not guilty of maliciously prosecuting plaintiff as alleged in plaintiff's petition.
It appears from the testimony that plaintiff and defendant entered into a contract whereby plaintiff agreed to remove timber from 263 acres of land belonging to defendant located in St. Genevieve County. Under the contract the timber was divided into six tracts. When plaintiff was almost finished with the work of removing the timber defendant had him arrested on a charge of cutting a wire fence and letting it down. The charge against plaintiff was tried before a Justice of the Peace who entered a finding and judgment of not guilty. The testimony shows that after plaintiff and defendant entered into the written contract mentioned, plaintiff started to cut the timber in accordance with the contract; that when plaintiff moved his mill onto tract No. 5, which abutted on a county highway, he entered through a gap in the barbed wire fence; that later plaintiff in hauling from his mill stopped using the gap and cut the wires of defendant's fence approximately 100 yards from the gap.
Plaintiff's testimony was to the effect that defendant authorized him to cut the fence and showed him where to cut it about ten days before plaintiff was arrested; that the cutting of the fence was necessary for a roadway to the tract of land where the timber was being cut; that there was a whole wire fence which surrounded the timber land and some cultivated land that defendant owned. The contract between the parties provided that all of the timber except 10,000 feet of lumber belonged to plaintiff for his work in cutting and removing the timber, the purpose being to make the land suitable for farming. Said 10,000 feet of lumber were to be turned over to defendant as the work progressed.
Plaintiff further testified that from the time he was arrested to the date of the trial of that case, approximately two weeks. most of his men quit working for him because they became frightened and did not return to work until plaintiff had been tried in the Justice Court and acquitted; that later the men reported back to work; that at the time of his arrest plaintiff had 1,500 logs cut which had a value of about $3,000; that in the meantime, after his arrest, the land got into such a condition because of a thaw that he could not remove the logs and that immediately thereafter a flood came and washed all of the logs away, resulting in loss to plaintiff; that before the arrest defendant Ziegler had told him that he, Ziegler, had been offered $2,000 for the timber.
Plaintiff further testified that he was greatly humiliated and was shunned by his neighbors after the arrest; that he was refused credit because of the arrest and the charges brought against him by defendant; that people to whom he had been selling the timber products refused to buy anything between the date of his arrest and the date of his trial in the Justice Court. Further testimony by plaintiff was to the effect that he lost three days time getting ready for trial of the criminal charge; that his time was worth $25 per day, and that he paid a lawyer $50 to defend him on the criminal charge.
The defendant Ziegler denied that he authorized or gave permission to plaintiff to cut the fence and testified that he told plaintiff a number of times to stay on the established roads or routes in and out, to and from the county road to the saw mill, and to stay out of the fields.
The Justice of the Peace testified as a witness in the instant case and stated that he did not recall any testimony before him that Ziegler gave permission to Coleman to cut the wire fence. The records of the trial before the Justice of the Peace were introduced in evidence.
The Prosecuting Attorney who represented the State in the prosecution of plaintiff on the charge of fence cutting testified in the instant case, stating that upon the facts given to him he had concluded there was probable cause for charging plaintiff with the offense of fence cutting. He also testified that he did not recall whether in the trial of the case before the Justice there was any testimony as to Ziegler giving permission to Coleman to cut the fence; that if Ziegler had told him that he had consented to the cutting of the fence he would not have filed the information and brought the prosecution; that he was of the opinion that there was probable cause to believe a crime had been committed and that after the case was tried in the Justice of the Peace Court he was still of the same opinion.
It also appears from the record in the instant case that the defendant Ziegler employed a special prosecutor, Judge Taylor Smith of Farmington, Missouri, to assist the Prosecuting Attorney in prosecuting Coleman on the fence cutting charge.
Defendant contends that the court erred in refusing to sustain his motion for a directed verdict at the close of plaintiff's evidence and at the close of the evidence in the whole case.
We are unable to agree with defendant in his contention that plaintiff failed to make a case for the jury. We have read the cases cited by defendant on this point and believe they would not justify us in holding that the court erred in refusing to direct a verdict for defendant. The law is well settled in this state to the effect that in a suit for damages for malicious prosecution the burden is on the plaintiff to prove that the prosecution against him was instituted without probable cause and with malice on the part of the person who instituted it. Our courts have uniformly held that probable cause which will relieve a prosecutor from liability "is a belief by him of the guilt of the accused, based on circumstances sufficiently strong to induce such belief in the mind of a reasonable and cautious man." Butcher v. Hoffman, 99 Mo.App. 239, 250, 73 S.W. 266, 269. See also Vansickle v. Brown, 68 Mo. 627; Stubbs v. Mulholland, 168 Mo. 47, 67 S.W. 650; Christian v. Hanna, 58 Mo.App. 37.
In Higgins v. Knickmeyer-Fleer Realty Investment Co., 335 Mo. 1010, 1025, 74 S.W.2d 805, 812, the necessary elements for plaintiff to show in a suit for damages for malicious prosecution were stated to be: "(1) The commencement or prosecution of the proceeding against him or her; (2) its legal causation by the present defendant; (3) its termination in favor of the present plaintiff; (4) the absence of probable cause for such proceeding; (5) the presence of malice therein: and (6) damage to plaintiff by reason thereof." See also to the same effect, Knost v. Terminal R. Ass'n of St. Louis, Mo.App., 222 S.W.2d 593.
In the case at bar it is conceded that the first three of the above mentioned elements, necessary to be shown by plaintiff to establish a case against defendant, have been shown. The remaining three elements necessary to be shown by plaintiff herein, namely, the absence of probable cause on the part of defendant for instituting the prosecution against plaintiff, the presence of malice in such prosecution, and damage to plaintiff by reason thereof must, of course, be determined by a consideration of the evidence. We think there was sufficient evidence adduced by plaintiff herein to warrant the court in submitting to the jury the question of whether or not there was a lack of probable cause and the presence of malice on the part of plaintiff in causing the arrest of plaintiff and in prosecuting him in the Justice Court. In considering these questions we are confronted with a direct conflict in the testimony given by the respective parties. Plaintiff Coleman testified specifically that he was given permission to cut the fence by defendant Ziegler himself, who, he said, showed him where to cut it. This testimony was specifically denied by Ziegler, who stated that he repeatedly told Coleman to stay out of his fields and to stay on the established roads and routes in and out from the county road to the saw mill.
The conflict in the testimony of the parties as to the facts made the case clearly one for the determination of the jury. If the jury believed plaintiff's testimony that he had the direct permission and consent of defendant Ziegler to cut the fence, then the arrest and prosecution of Coleman at the instigation of Ziegler could properly be found by the jury to be without probable cause and such finding would justify a verdict for plaintiff for such damages as the jury deemed proper within the evidence and under proper instructions. If, on the other hand, the jury believed that plaintiff cut the fence without such permission from defendant Ziegler, the jury would be justified in finding that there was probable cause for the arrest and prosecution of plaintiff Coleman and Coleman would not be entitled to any damages for his arrest and prosecution, even though he was acquitted in the Justice Court on the charge made against him. Under the evidence in the record we think it is clear that plaintiff made a case which justified the court in submitting the matter to the jury for their decision.
It must be remembered that the applicable rule in this situation, where it is claimed that the court should have directed a verdict in favor of defendant, is that an appellate court cannot interfere with the action of the trial court in refusing to direct a verdict for defendant if there is any substantial evidence to support a verdict for plaintiff. Furthermore, the question of whether or not the court should have directed a verdict for defendant must be considered from the viewpoint of the evidence most favorable to plaintiff. March v. Vandiver, 181 Mo.App. 281, 168 S.W. 824. With respect to the element of malice, that element has been defined to be "a wrongful act done intentionally, without legal justification or excuse." State ex rel. Mann v. Trimble, et al., 290 Mo. 661, 232 S.W. 100, 103. It is the established law in this state that in a suit for damages for malicious prosecution where want of probable cause is shown, the jury may infer malice from the facts which show the want of probable cause and the burden then falls on the defendant to show that he acted without malice. Butcher v. Hoffman, supra; Stubbs v. Mulholland, supra. Under the evidence and the law we hold that the court did not err in overruling defendant's motions for a directed verdict in his favor.
Defendant next contends that the court erred in permitting plaintiff to testify to the loss of 1,500 logs and the value of such logs and to testify as to the reason why plaintiff's employees quit work after the arrest of plaintiff. In support of this contention defendant argues that the time of the loss of the logs and the quitting of plaintiff's employees was never fixed. He also contends that without guess and speculation the claimed damage to plaintiff from the loss of the logs cannot be attributed to the acts of defendant in causing the arrest of plaintiff.
It will be noted that the ground of objection to the evidence relating to the loss of the logs and the value thereof was that the time of said loss was not fixed and that it is only by speculation and guess that defendant can be held liable for such loss. The record shows that defendant made numerous efforts to keep this evidence out of the case but notwithstanding his repeated objections it was admitted by the court. Thus the jury were permitted to consider as an element of damage to plaintiff the $3,000 item which represented the value of the logs which were said to have been lost by plaintiff. The odd amount of the verdict returned by the jury, namely $3,125, indicates that the jury included therein the sum of $50 for plaintiff's attorney's fees in the criminal case and $75, representing plaintiff's loss of three days time at $25 per day, a total for these items of $125, which were properly allowable as damages under plaintiff's petition. The jury appears to have then added the sum of $3,000 representing the loss of the logs, making the total verdict of $3,125.
Plaintiff in his petition did not plead any such special damage as the loss of the logs in question but was nevertheless permitted to have the jury consider and allow for such special damage, notwithstanding defendant's persistent efforts to keep such evidence out of the case. The item of $3,000, representing the value of the logs, was clearly "special damages" which should have been "specifically stated" in the petition, as required by Section 52 of the New Civil Code, Laws Mo. 1943, page 372, Mo. R.S.A. § 847.52 which provides as follows: "When items of special damage are claimed, they shall be specifically stated."
The loss of the logs was not the "ordinary," "natural," and "probable" consequence of the arrest and prosecution of plaintiff by defendant even though it may have been the direct result thereof in this particular case. Hence, such loss should have been pleaded as special damages in plaintiff's petition in order to make evidence of such loss admissible in the trial. There being no mention whatsoever in plaintiff's petition of any such loss, defendant could not be expected to be in a position to meet the evidence of plaintiff showing such special damage and loss. The introduction of such evidence, therefore, was highly prejudicial to defendant in the trial of the case. It is true defendant did not base his objections to such evidence expressly on the precise ground that such damage had not been specifically pleaded by plaintiff, but we think that the ground on which he did persistently object to such evidence was sufficiently broad to include that ground. Plaintiff's petition did not contain the slightest inkling that plaintiff would claim damages of $3,000 for the loss of the logs in question. Hence, defendant was at a great disadvantage at the trial when evidence of such special damage was admitted over his objections.
We do not say that plaintiff would not be entitled to have the jury consider as damages the value of the logs which he claimed were lost, but we do say he should not have been permitted to introduce evidence of such loss and recover therefor without alleging in his petition such loss as special damages.
It is peculiarly the function of the jury to find and assess the damages, both actual and punitive, in a suit for damages for malicious prosecution, but their verdict should be based on proper evidence. Where, as here, evidence is improperly admitted, thus resulting in an erroneous verdict, such verdict cannot be corrected by a remittitur. The only remedy in such a situation is a new trial on proper evidence.
The conclusion we have reached makes it unnecessary to consider the point concerning excessive damages raised by defendant in this court.
For the error in admitting the evidence mentioned, the judgment is reversed and the cause remanded with directions to the trial court to permit plaintiff, if he is so advised, to amend his petition to include any "special damages" claimed by him.
ANDERSON, P. J., concurs in result.
HUGHES, J., concurs.
Appellant's objection in the trial court to the evidence concerning the loss and value of the logs in question was not on the ground that such evidence was beyond the scope of the pleadings, nor was such point urged in his brief in this court. However, it does appear that he did object to the evidence concerning the value of the logs on the ground that there was not sufficient proof connecting such loss with plaintiff's unlawful arrest. The objection was well taken and should have been sustained. For that reason I concur in the order reversing the judgment and remanding the cause for new trial.