Opinion
No. 42586.
April 14, 1952.
APPEAL FROM THE CIRCUIT COURT OF McDONALD COUNTY AT PINEVILLE, REX V. McPHERSON, J.
Gordon R. Boyer, Lamar, James L. Paul, Pineville, Al Lebrecht, Kansas City, for appellant.
Justin Ruark, Neosho, J. T. Pinnell, Pineville, for respondents.
In this action for $25,000 actual and punitive damages for malicious prosecution the trial court has sustained the defendants' motion to dismiss the plaintiff's petition for the reason that the petition failed to state a cause of action. More specifically, the trial court was of the view that the petition failed to state a claim upon which relief could be granted, and the plaintiff refusing to amend his petition or to further plead, the court sustained the motion to dismiss and entered judgment for the defendants. To successfully maintain an action for malicious prosecution the plaintiff in the civil action must not have been guilty of the criminal offense with which he was charged, and one of the essential elements of a cause of action, both as to pleading and proof, is that the criminal proceeding must have terminated in favor of the accused. 3 Restatement, Torts, Secs. 653, 658, 672; Higgins v. Knickmeyer-Fleer Realty Inv. Co., 335 Mo. 1010, 1025, 74 S.W.2d 805. Upon this appeal by the plaintiff the question for determination is whether his petition has so alleged a termination of the criminal proceeding complained of in his favor that he could or is entitled to maintain this action, if not the trial court did not err in dismissing the action. Zickel v. Knell, 357 Mo. 678, 210 S.W.2d 59, 3 A.L.R.2d 1304; Niedringhaus v. Zucker, Mo.Sup., 208 S.W.2d 211.
The relationship of the parties does not appear from the petition, nor are we informed as to the circumstances of the origin and inception of the criminal proceeding, but it is probable that all the controversies and proceedings originated in the plaintiff's serious marital difficulties. It does appear from the petition, however, that the plaintiff, a dentist, was charged, by complaint in the County Court of Leflore County, Oklahoma, Const.Okla., Art. 7, Sec. 17 with the "mixed" felony of "child stealing," — taking and enticing away a child under the age of twelve years from its parent, guardian or other person having lawful charge of the child. 21 Okla.S.A. § 891; 1949 R.S.Mo., Sec. 559.250, V.A.M.S. He alleges that the defendants maliciously and without probable cause procured the initiation of the criminal proceeding and caused the issuance of a warrant for his arrest upon the charged crime, and in addition, in March 1950, procured the issuance of a warrant charging him with being a fugitive from justice, and causing his subsequent arrest in Barton County, Missouri, and his confinement in the Barton County jail for delivery to the custody of the sheriff of Leflore County, Oklahoma, for the purpose of returning him to Oklahoma for trial upon the charge of child stealing. He then alleges that in April 1950 the defendants caused and instigated the filing of a requisition upon the Governor of Missouri for his extradition to Oklahoma and the issuance of an executive warrant by the Governor of Missouri and the purpose of the defendants and the sheriff of Leflore County to return him to Oklahoma. Following the latter paragraph he alleges "that thereafter he was released from custody on the 5th day of April, 1950, by authority of a writ of habeas corpus, duly issued out of the Circuit Court of Barton County, Missouri." It is charged that the defendants appeared against the plaintiff in the habeas corpus hearing and the termination of the criminal proceeding in his favor is alleged in this language: "that on the 19th day of May, 1950, the writ of habeas corpus was sustained, the plaintiff was found not to have violated any criminal law of the State of Oklahoma nor of the State of Missouri, and he was found not to be a fugitive from justice and charge against plaintiff was dismissed and fully ended and plaintiff was discharged."
It is not necessary to a determination of this cause to resort to the general rules concerning the construction of pleadings in malicious prosecution, Thompson v. Farmers Exchange Bank, 333 Mo. 437, 62 S.W.2d 803, 810, because, from his refusal to amend his petition and from his brief, and argument here, it is obvious that the plaintiff treats the allegations of his petition, not merely as sufficient or broad enough as a matter of pleading, Holliday v. Holliday, 123 Cal. 26, 55 P. 703, to allow proof of the circumstances of favorable termination, but as what the final proof would show, and therefore as the ultimate fact. By accepting the plaintiff's allegations there is, of course, no conflict as to the facts and whether the proceedings were terminated in his favor is a question of law for the court to determine. 3 Restatement, Torts, Sec. 673(1)b; 54 C.J.S., Malicious Prosecution, § 101, p. 1095. It is the plain and fair inference from his petition that the plaintiff does not claim that the criminal proceeding against him in Oklahoma has in fact been disposed of or terminated favorably to him either by abandonment, dismissal in any manner, exoneration upon a preliminary hearing, acquittal upon trial, or by any final order in his favor by any official or court in Oklahoma. 3 Restatement, Torts, Sec. 659; Motley v. Dugan, Mo.App., 191 S.W.2d 979; Cooper v. Associated Laundries, Mo.App., 83 S.W.2d 591; Coffman v. Shell Petroleum Corp., 228 Mo. App. 727, 71 S.W.2d 97. His allegation that he "was found not to have violated any criminal law of the State of Oklahoma" does not mean that the fact was so found in Oklahoma, but means, as he alleges, that it was found in his habeas corpus hearing in Missouri. As a matter of fact, the essence of his claim and the basis of his cause of action, as to this single essential element, is that his discharge in Missouri upon habeas corpus, in and of itself, is such a favorable termination of the criminal charge against him in Oklahoma as to support and entitle him to maintain this action for malicious prosecution.
Even in the cases in which a discharge upon habeas corpus was recognized as a sufficient favorable termination of the criminal proceeding it was pointed out that "A discharge upon habeas corpus is not necessarily, and in all cases, the end of the prosecution." Zebley v. Storey, 117 Pa. 478, 12 A. 569, 571. Such discharge was sufficient in the Zebley case because in Pennsylvania in 1888 the judge upon habeas corpus made the same examination that the committing magistrate made. "If, upon a discharge on a writ of habeas corpus, the proceeding against the accused can go no further, there is a sufficient termination to sustain an action for malicious prosecution. If, on the other hand, the prosecution may still go on and the accused may possibly be convicted, his discharge on habeas corpus, because it does not relieve him from the duty of further defending himself, cannot support his action." 34 Am.Jur., Sec. 33, p. 723; annotations 2 L.R.A.(N.S.) 927; 39 L.R.A.(N.S.) 1215. In most of the cases there had been a trial upon the merits, but when it appeared that the discharge upon habeas corpus did not as a matter of law terminate the criminal proceeding it was held that the discharge on habeas corpus was not such a favorable termination as would support an action for malicious prosecution. Holliday v. Holliday, supra; Walker v. Martin, 43 Ill. 508; Merriman v. Morgan, 7 Or. 68; Hinds v. Parker, 11 App. Div. 327, 42 N.Y.S. 955. Furthermore, in all those cases all the proceedings, the criminal and the civil as well as the habeas corpus, were in the same jurisdiction.
In this case, as we have indicated, it is a fair inference from the petition that the criminal proceeding in Oklahoma has not been disposed of favorably to the plaintiff. He alleges in his petition, even since his discharge on habeas corpus, that the defendants have sought his arrest in Kansas City, in Arkansas and elsewhere, upon the charge of child stealing. Here, furthermore, the discharge was from custody for the purpose of extradition to Oklahoma, and in that proceeding the plaintiff's petition in habeas corpus "challenges only the validity of the petitioner's detention under the extradition warrant and does not challenge the legality of his original or impending detention in the state demanding his return, * * *." Davis v. O'Connell, 8 Cir., 185 F.2d 513, 517; Ex parte Rummerfield v. Watson, 335 Mo. 71, 70 S.W.2d 895. In such a proceeding "Whether he was guilty or innocent of the charge, whether a crime had in fact been committed, and whether the prosecution against him had been commenced merely to aid in the collection of a private debt, were all questions which lay beyond the scope of the court's inquiry." State ex rel. Gaines v. Westhues, 318 Mo. 928, 933, 2 S.W.2d 612, 615; ex Parte Ellis, 223 Mo.App. 125, 9 S.W.2d 544; 1949 R.S.Mo., Sec. 532.390, V.A.M.S.; 39 C.J.S., Habeas Corpus, § 39(h), p. 561. In the circumstances alleged in this petition, the undisposed of complaint in the County Court of Leflore County, Oklahoma, and the discharge in habeas corpus from extradition in Barton County, Missouri, there is some analogy in the actions for the malicious prosecution of certain civil actions in which counterclaiming defendants complain and charge as malicious prosecution the petition against which they propose to counterclaim. Niedringhaus v. Zucker, supra; Zickel v. Knell, supra. In any event, in the circumstances alleged in this petition, the plaintiff's mere discharge by habeas corpus in Barton County, Missouri does not demonstrate that the criminal prosecution against him in Oklahoma is at an end, or, in short, that it has "terminated favorably to him" within the meaning of that phrase as it is employed to describe one of the essential elements of a cause of action for malicious prosecution. Merriman v. Morgan, supra; Hinds v. Parker, supra. Since the plaintiff necessarily relies upon these ultimate facts and circumstances, and refused to amend his petition, the circuit court did not err in dismissing his petition and entering judgment for the defendants. Accordingly, the judgment is affirmed.
WESTHUES and BOHLING, CC., concur.
The foregoing opinion by BARRETT, C., is adopted as the opinion of the Court.
All concur.