Brown v. City of Cape Girardeau

Ray, J. —

The first count of the petition in this case is as follows:

Plaintiffs state that they are now, and for more than fifteen years last past have been, husband and wife. Plaintiffs state that defendant wilfully, maliciously and without probable cause, instituted, and caused to be *381 instituted, against these plaintiffs, a certain groundless, false, malicious and vexatious suit in this court, on, or about the ninth day of April, 1879, for certain taxes, alleged to.be due and owing by this plaintiff, Theodocia Brown; that said suit was made returnable to the May term, 1879, of this court; and by the statutes in such, cases made and provided, said suit was triable at said. May term, 1879 ; nevertheless, plaintiffs state that said, action was never brought to a hearing by this defendant, although solicited, demanded, and requested so to do ; that thereafter the said city of Cape Girardeau, on, to-wit, January 30, 1884, in term time of said court, did, voluntarily, dismiss the same, and so said cause of action had wholly ceased, and been determined as aforesaid that by reason of said false, malicious and groundless suit, as aforesaid, plaintiff, Theodocia Brown, hath been put to great trouble, annoyance, and the employment of an attorney, to her damage in a great sum, to-wit: the sum of five hundred dollars, for which she demands-judgment.

The second count is for damages for the institution of another suit for taxes in the following July, audits allegations are in all respects similar.

The answer of defendant was a general denial. The cause coming on for trial, defendant objected to the introduction of any evidence, upon the grounds that the petition did not state facts sufficient to constitute a cause of action, and because a municipal corporation is not liable in damages for the malicious prosecution ofcivil actions, which objections were sustained, and plaintiffs excepted. This ruling of the court is the only error-complained of and the only question now before us.

As between mere private parties, actions may be-maintained for the malicious institution, without probable cause,.of a civil suit, but even as between these, the authorities are not uniform as to what cases are embraced within the rule; Such cases as those for the- *382 malicious institution of suits in bankruptcy, or by attachments of the property, or proceedings to declare a person insane, or civil suits maliciously begun by the arrest of the party, are, perhaps, generally recognized within the rule. A class of cases, of which Clossan v. Staples, 42 Vt. 209, is perhaps the leading one, holds that where a civil suit is commenced and prosecuted maliciously, without probable cause, and is terminated in favor of the defendant, the plaintiff is liable for the damages sustained in defending, at least, such damages as are in excess of the taxable costs. In Mayor v. Walter, 64 Pa. St. 283, Sharswood, speaking for the court, observes : “If the person be not arrested, or his property •seized, it is unimportant how futile and unfounded the action may be, as plaintiff, in consideration of law, is ■punished by the payment of costs.” The English cases, observes Cooley, in his work on Torts, support the view entertained by the Pennsylvania case. He also makes the comment, in the text, “that if every suit may be re-tried on an allegation of malice,' the evils would be intolerable, and the malice in each subsequent suit would be likely greater than in the first.” Cooley on Torts, 189.

We have not been furnished, in the brief of counsel, with a citation to any authority, if such exists, in which this'rule has been extended so as to expressly embrace the case of liability of a municipal corporation for the malicious prosecution of a civil suit. The liability of such corporations for torts, in some instances, is now well settled, and has been recognized by this court. Among others, is the case of Worley v. Inhabitants of Columbia, 88 Mo. 110 , in which the facts were, that plaintiff had been arrested and imprisoned, by the town authorities, under a void ordinance. This court there said: “It is the rule in this state, in this class of cases, that the corporation is liable for the act of its agents, injurious to others, when the act is in its nature lawful and authorized, but done in an unlawful manner, or unauthorized *383 place, but is not liable for injurious and tortious acts, which are, in their nature, unlawful or prohibited.” The case contains an extended discussion of the general question, and a review of the cases upon the subject, and in its principle and analogies is, we think, conclusive of the case now before us. The right of the corporation to •sue for, and to collect, taxes, would depend upon its authority, under the statutes, or grant of power by the state, to levy and impose the same. As to this, municipal corporations exercise governmental powers, conferred upon them by law, within prescribed limits, for local convenience, and for the public good.

The petition in the case contains no statement of facts sufficient to enable us to determine whether or not the corporation had, or had not, the authority to levy and impose, and to collect, the taxes involved in •said suits. It does not appear what said taxes were for, or when, or how, imposed. If the taxes were valid, and it had authority, under the law, or its powers and valid ■ordinances, to impose them, and authority to collect the same, its motives are irrelevant and immaterial. The motives of the constituted and authorized law makers are such only as appear on the face of their enactments, and are not otherwise judicially subject to examination. Mayor v. Randolph, 4 Watts & Serg. [Pa.] 514. As to such persons, it may be that the absence of all authority is the equivalent of the want of probable cause in the ordinary action. In any event, the facts, and not the conclusion of the pleader upon the facts, •should be averred, to show the want of authority, or want of probable cause. Such is the rule of pleading-in the ordinary action for malicious prosecution. In the present case, the petition is fatally defective, for want of a sufficient statement of facts. And the action of the court, in sustaining the demurrer, is, therefore, approved, and its judgment in the cause affirmed.

All concur.