Summary
Appeal from St. Louis City Circuit Court. — Him. O’Neill Ryan, Judge.
STATEMENT.
The action is for malicious prosecution. The material parts of plaintiff’s own testimony is as follows:
“I got on the car at Twenty-first and Cass avenue. I walked in and took a seat on the north side of the car running east, the second seat from the rear; I sat there some few minutes, or whatever time it was, and the conductor came for my fare; I offered him a nickel I had and he refused to take it; I told him that I thought the nickel was good. He told me he did not think it was good and he would not take it; I told him it was all I had and I thought it was good; we argued a few minutes; he took hold of me, pulled me out of the seat to the door; at the rear door I blocked it so that hecouldnotgetthrough; I sat down; he beckoned for the motorman to come back and help him; there were three, if not four, policemen on the rear platform; the motorman beckoned hack, or in words, I don’t remember exactly how it was, hut he referred him to the policemen.
“There were words spoken, I can’t remember the words, and the conductor asked the policemen to arrest me.
“The policeman got the nickel from me and they looked it over and they hesitated; the conductor was talking to them, and finally one of the policemen agreed to arrest me. He took me down on the same car, down to Eighth and Carr; on Eighth and Carr they wanted me to go around the line; I said no, I had business to attend to, to arrest me there; they took me off the car and took me to Seventh and Carr, the policeman took me in there. It was understood when we got off the car the conductor was to stop.
“The policeman told the conductor to stop on his return trip on Seventh street at the station. In the meantime I was taken to the station. ’ ’
Plaintiff was held at the station until the conductor came in. When he came in, the captain of the police for the Fourth district asked him if plaintiff hit him. The conductor answered that he did not.
“Capt. Kiely asked: ‘Why did you have the man arrested?-’ and he said: ‘Because he gave me illegal tender.’ Capt. Kiely said: ‘What is the matter with the nickel?’ And the conductor made some excuse.
“Capt. Kiely said he saw no case there to hold me for and I wanted him to arrest me so I could get out and get my money for my men working for me, and I would give bond, he said he could see no case for that, and he would send me to the Transit Company, and for them to prefer charges. That was the only nickel I had on me when I got on that car.
“Capt. Kiely then sent me out with a police officer, and on the same car with the conductor out to the Transit Company’s office on Spring and North Market. Before starting Capt. Kiely said to the officer, in case the •company' did not prefer charges on me that he was to ride back to my place of business, and he agreed to that because I did not have any money.”
Plaintiff further states that his only nickel was in the possession of the conductor and when they arrived at the sheds of the Transit Company they were met by Mr. Minary, the foreman, who came to the window of the office. The policeman produced the nickel and the conductor asked Minary if the company would receive the .money from him. ‘ ‘ Minary went and sent a lady in charge there to the telephone; the telephone was in hearing of the same office we were standing in, and this lady kind of explained the case over the telephone.”
Minary came back and ordered the policeman to prefer a charge of disturbing the peace, and the plaintiff was then taken back to the station where a charge of violating the following city ordinance was preferred . against him:
“Sec. 1459. Disturbances of the Peace. Penalty. Any person, who, in this city, shall disturb the peace of .others by violent, tumultuous, offensive or obstreperous conduct or carriage, or by loud and unusual noises, or by unseemly, profane, obscene or offensive language,, calculated to provoke a breach of the peace, or by assaulting, striking or fighting another; or any person, who, in this city, shall permit any such conduct in or upon any house or premises owned or possessed by them, or nnder their management or control, so that others in the vicinity are disturbed thereby, shall be-deemed guilty of a misdemeanor, and upon conviction thereof be fined not less than five nor more than five-hundred dollars. ’ ’
The case was assigned to police justice Adolph Wislizenus" for trial. Plaintiff gave bond to appear before the justice on February 4, 1901, and was released from custody.
On plaintiff’s application the cause was continued from February fourth to February eighth. On the-latter date the parties appeared and the cause was heard by the justice.
To sustain the charge two witnesses were sworn, Dyer, the police officer who- made the arrest, and the conductor; both of whom testified in effect that there was no fighting or offer to fight on the car; that no violence or objectionable language was used by the defendant (plaintiff here). On the evidence of these witnesses the justice discharged the defendant and no further proceedings were had.
Plaintiff read in evidence the following rule of defendant for the guidance of its conductors, which rule defendant admitted was in force:
“In case of trouble on a car call a policeman, when one can be found, and when it becomes necessary to eject a passenger from a car it must be brought to a full stop, using no more force than is required to remove biim from the car. This should never be done except in extreme cases, and then the names of several witnesses should be taken, for reference if necessary. ’ ’
The plaintiff testified that he paid out $3.50 to procure a bond before the justice and $10 to an attorney to represent him in that court; that on the day he was arrested he was detained until 12:30 p. m., but was not locked up at any time.
In respect to the arrest and facts leading up to it, and the subsequent proceedings, the evidence is all one way. There was evidence offered tending to show that the nickel offered to the conductor by plaintiff in payment of his fare was worn smooth on one side, but on the other the stamped device was plain to be seen and that it was a good and current nickel.
The conductor testified in respect to it as follows:
“Q. I will ask you whether or not you refused that coin in good faith, believing that it was not legal tender? A. I did; thinking it was not good myself, I called the passengers’ attention to it and got their opinion.
“Q. Did you entertain any malice to Mr. Ruth? A. No, sir; my idea was to be courteous to him; I was quite anxious to be courteous.
“Q. Was there a scuffle at any time between you and the man when attempting to eject him from the car? A. There was when I got near the door.
“Q. How did it manifest itself on the passengers in the car? A. It caused the ladies to scream and rush to the front end of the car.
“ Q. I will ask you whether or not Mr. Ruth stated while he was in the car, that he would not leave the car unless he was arrested? A. He made such a statement, repeatedly made it.
“Q. That he would not leave the car unless arrested? A. Yes, sir.
“Q. After he was arrested he left the car peacefully? A. He left the car, did whatever the policeman suggested.
“Q. Did he state to you that you could take that coin or nothing? A. Yes, sir; he made that statement.
“Q. Your instructions are contained in the book of rules which is bound in blue? A. Yes, sir.
“ Q. Your verbal instructions are to read the book and observe the rules? A. Yes, sir; those are my instructions; I think I understand them.
‘ ‘ Q. That is the extent of your verbal instructions ? A. That is the extent of my verbal instructions.
“Q. You had never had occasion to consult anybody in reference to an occurrence like this ? A. I never had.'
“Q. That is the first occurrence of the kind you met with? A. Yes, sir.”'
He also testified that the piece tendered him by the plaintiff “was perfectly smooth on both sides so that he could not tell what it was; that the only possible mark of any kind was a perpendicular mark like the shield portion of some old-fashioned five-cent piece; that was the only thing that would indicate that it had been money. ’ ’
He further testified that he was not acquainted with plaintiff; that he tried to treat him courteously and had no malice against him.
During the controversy in the car there were several police officers on the hack platform and after the first attempt of the conductor to put plaintiff off, he called to the police to arrest plaintiff. The police were slow in responding to the request-, and in the interval plaintiff repeatedly stated that he would not leave the car unless he was arrested.
For the plaintiff the court instructed the jury as follows:
“1. The court instructs the jury that the issue in this case is whether from all the facts and circumstances given in evidence the defendant instituted the proceedings against the plaintiff and caused his arrest on the charge of disturbing the peace, as set forth in the municipal ordinance read in evidence, and prosecuted the same without a belief in the guilt of plaintiff, based upon circumstances sufficiently strong in themselves to* induce such belief in the mind of a reasonable and cautious man; and in addition thereto that the defendant was actuated in such prosecution by malice against the plaintiff.
“2. The court instructs the jury that if they find and believe from a preponderance of the evidence: First, That defendant, through the conductor on the car mentioned in the evidence, acting within the scope of his authority, as defined in instruction No., 3, instituted and prosecuted the proceedings against the plaintiff set forth in the petition. Second. That the prosecution alleged in said petition was finally determined in favor of plaintiff. Third. That from all the facts and circumstances connected with the case the defendant, at the time of instituting and carrying on the prosecution mentioned in the petition, had no reasonable or probable cause to believe plaintiff was guilty of the offense charged, as more fully explained in instruction numbered 5. Fourth. That in said proceedings against the plaintiff, alleged in the petition, the defendant was actuated by malice toward plaintiff. Then their verdict will be for the plaintiff, and they will assess his actual damages in such sum, not exceeding one thousand dollars, as they believe from the evidence will fairly and reasonably compensate him for any necessary and direct loss of or outlay of money incurred in and about the defense of said charge and for any shame, mortification, mental anguish and pain and injury to his feelings or reputation, which they may believe from the evidence was suffered by him and directly resulted from defendant’s said action; and the jury is further at liberty, if they believe from the evidence that said alleged act or acts of defendant were done wantonly, maliciously and in gross disregard of plaintiff’s rights as a passenger on defendant’s car (and if they think just and proper in view of all the facts and circumstances in evidence) to award to plaintiff punitive or exemplary damages in addition to actual damages in such sum, not exceeding one thousand dollars, as they believe will, under all the circumstances of the case, punish defendant and serve as a warning to others against a like course of action; and if the jury find in favor of plaintiff as to punitive damages, they will so find and the amount thereof, separately, and separately state in their verdict.
“3. The court further instructs the jury that defendant is liable for all acts committed by its officers, servants and employees while in the performance of the work intrusted to them, respectively, whether lawful or unlawful, which are within the scope of the authority conferred upon them either expressly or by fair implication even though the specific act was not expressly authorized by defendant. If therefore the jury find and believe from the evidence that the act or acts complained of in the petition and mentioned in these instructions were committed by a servant or employee, while in the performance of the work intrusted to him, and was within the scope of the authority conferred either expressly or by fair implication upon Mm, then such act or acts are in law the acts of defendant, even though it should not appear from the evidence that defendant' expressly authorized the specific act.
“4. If the jury find and believe from the evidence that the defendant instituted the prosecution for disturbing the peace against plaintiff without probable cause as defined in these instructions, and that in so doing, it was actuated either by hostile, angry or vindictive motives against the plaintiff, or that its acts in so doing was intentionally done with a knowledge that it was without legal justification or foundation, then its acts in so doing would be malicious, within the meamng of the law and of these instructions; and the jury are instructed that they are at liberty to infer the existence of malice on the part of defendant from the facts and circumstances which they may find and believe from the evidence established want of probable cause as in these instructions defined.'
“5. The court further instructs the jury that by the words ‘probable cause’ as used in these instructions, is meant a belief by the defendant in the guilt of the accused based upon facts and circumstances sufficiently strong in themselves to induce such belief in the mind of a reasonable and cautious man.
“6. The court further instructs the jury that it is the duty of a common carrier of passengers to carry all persons who may apply and who pay or offer to pay in lawful money of the United States the fare required; and the jury is further instructed, as a matter of law, that the five-cent piece introduced in evidence is lawful money of the United States, and a coin wMch is legal tender in payment of debts up to the amount of $10, and if they find and believe that on or about February 2, 1901, while plaintiff was a passenger on one of defendant’s cars he tendered said five-cent piece in payment of his fare, to defendant’s conductor in charge of said car, and that said conductor refused to accept or to receive the same, but demanded of plaintiff that he pay his fare with another coin or with other money, then the jury are instructed that it was the duty of said conductor to receive and accept said coin, and plaintiff was justified in refusing to alight from said car, and such action by plaintiff without more did not constitute a breach of the peace within the meaning of the municipal ordinance read in evidence.
“7. The court instructs the jury that if three-fourths of their number concur in a result the jury may return that result as the verdict of the jury, in which event all of the jurors who agree to it shall sign the verdict. If, however, the entire twelve jurors concur in a verdict, the foreman alone may sign it.”
For the defendant as follows:
11 The court instructs the jury that if they find from the evidence that plaintiff, after his controversy with defendant’s conductor, and after said conductor had re-fused to accept the fare tendered by him, and after said conductor had requested him to leave the car, refused so to do unless he were arrested, and so refused for the purpose of being arrested, then plaintiff can not recover in this action, even though said arrest was wrongful and without probable cause.
“"The court instructs the jury that plaintiff is not entitled to recover any damages for injuries sustained by reason of the publication in the "newspapers of accounts of his arrest and prosecution. ’ ’
Plaintiff prayed for $1,000 actual and $1,000 punitive damages.
The verdict was as follows:
“We the jury in the above entitled cause do find in favor of plaintiff, and assess his actual damages at the sum of one thousand dollars, and we assess his punitive damages at the sum of one thousand dollars.”
Defendant filed a timely motion for new trial and in arrest of judgment, which was overruled; whereupon defendant appealed.
■ (1) The plaintiff, under the whole evidence, was not entitled to recover. The facts in the case are practically undisputed and the conclusion’to he drawn from them is, therefore, one of law for the court. These facts do not show a want of probable cause, and do show an absolute want of malice; both being essential to recovery, the plaintiff’s case must fail. Meysenberg v. Engelke, 18 Mo. App. 351. (2) The court erred in failing to instruct the jury as to what constituted a want of probable cause, and in allowing the jury to determine for itself without guide or limitation what constituted a want of probable cause. Meysenberg v. Engelke, 18 Mo. App. 352. The court erred in instruction 6, in stating facts which did not constitute guilt upon plaintiff’s part, as not guilt but the reasonable appearance of guilt was the issue. Meysenberg v. Engelke, 18 Mo. App. 352. (3) Plaintiff’s instructions 2 and 3 were erroneous in referring the jury to the pleadings for its information as to the acts of defendant and the proceedings alleged to have been instituted by it. Grant v. Railway, 25 Mo. App. 227; Butcher v. Death, 15 Mo. 274; Shaw v. Dairy Co., .56 Mo. App. 526; Proctor v. Loomis, 35 Mo. App. 488; Fleischmann v. Miller. 38 Mo. App. 181; Crocker v. Crocker, 2 Mo. App. 458. (4) The court erred in admitting all of the testimony of witness Dyer, as all of it was incompetent. (5) Under the facts in this case the court was not justified in stating to the jury, as it did in instruction 4, given for plaintiff, that they were at liberty to infer the existence of malice from the want of probable cause, the evidence all. showing that the arrest, if wrongful, was so through ignorance and not through malice. Sharpe v. Johnston, 59 Mo: 557; Sharpe v. Johnston, 76 Mo. 661; McGarry v. Ry., 36 Mo. App. 346; Grant v. Reinhardt, 33 Mo. App. 74; Smith v. Barnes, 106 Mo. 100; Vansiclde v, Brown, 68 Mo. 627.
(1) The elements necessary to a recovery in an action for malicious prosecution are: First. The institution or prosecution by the defendant of the proceedings complained of. Second. The final determination of the proceedings in favor of plaintiff. Third. Want of probable cause on the part of defendant to believe plaintiff guilty of the offense charged. Fourth. Malice on the part of defendant in instituting or continuing the prosecution of plaintiff; all of which elements áre presented by this record, in the evidence and the instructions of the trial court. McGarry v. Railway, 36 Mo. App. 340. In a legal sense any unlawful act which is done willfully and purposely to the injury of another is, as against that person, malicious. In actions for malicious prosecutions, the malice may be a mere wanton or careless disregard for the rights of others, or it may be the doing of the acts complained of without that ordinary prudence and discretion which persons of sufficient age and sound mind are presumed to have. 14 Am. and-Eng. Ency. of Law (1 Ed.), p. 22. Malice does not necessarily mean alone that state of mind which must proceed from a spiteful, revengeful or vindictive disposition but includes as well that which proceeds from an ill-regulated mind, not sufficiently cautious and recklessly bent on the attainment of some desired end, although it may inflict wanton injury on ■ another. Brewer v. Jacobs, 22 Fed. Rep. 217. (2) Under the evidence in this case not only was malice in -law on the part of defendant shown sufficient to sustain the action, but express malice or malice in fact was clearly indicated by the action of defendant in proceeding to carry on the prosecution of plaintiff after it had learned from the conductor all the facts and had an opportunity of. dropping the matter. It is sufficient to show that the prosecution was either commenced or was continued maliciously. Finley v. St. L. Ref. & W. G. Co., 99 Mo. 559; Christian v. Hanna, 58 Mo. App. 37. (3) There was no error in the instruction on probable cause or what constituted a want of probable cause. Plaintiff’s various instructions followed the forms repeatedly passed upon and approved by the appellate courts of this State and particularly by this court in the case of McGarry v. Railway, 36 Mo. App. 346. Plaintiff offered an instruction requesting the court to charge the jury that the conceded facts in the case did not amount to proof of the offense charged, which instruction (plaintiff’s instruction 6) was given. Defendant offered but one instruction covering the specific facts under its theory as to the existence of probable cause, which instruction was properly refused for reasons elsewhere pointed out. In the absence of a request by defendant to correctly charge the jury what facts, if found, would amount to probable cause, a failure by the court to do more than instruct on the question in general terms is mere non-direction and not error. Thomas v. Smith, 51 Mo. App. 614; (distinguishing Meysenburg v. Engelke, 18 Mo. App. 354; Callahan v. Óafferata, 39 Mo. 136. (4) Under such circumstances and where the jury would be justified in finding all the facts in the petition, the proof being as broad as the allegations, it is always permissible for the purpose of shortening an instruction to refer the jury to the pleadings. Cocker v. Cocker, 2 Mo. App. 458; Edelman v. St. Louis Transfer Co., 3 Mo. App. 503; Corrisfer v. Railroad, 25 Mo. App. 619; Obert v. Strube, 51 Mo. App. 621; McGarry v. Railroad, 36 Mo. App. 346. (5) Defendant’s first instruction was properly refused; The facts contained in the hypothesis which discloses defendant’s theory of this case even if true, did not amount to probable cause for instituting and’ carrying on the proceedings against plaintiff, and it was the duty of the court to declare the facts set forth in the instruction insufficient. The instruction was erroneous because it did not require the jury to find a belief on the part of the conductor in the guilt of plaintiff of the charge of disturbing the peace. Staley v. Turner, 21 Mo. App. 254; Callahan v. Cafferata, 39 Mo. 136. (6) The instruction was erroneous because it utterly ignored the liability of defendant for proceeding with the prosecution after the conductor, with the police officer in charge of plaintiff, had visited the company’s office and after the conductor had made a full report of the matter. Christian v. Hanna, 58 Mo. App. 37. (7) The discharge of a defendant upon preliminary examination by a committing magistrate is prima facie, even very persuasive, evidence that the prosecution was without probable cause. “The magistrate has the very question of probable cause to try; and the evidence on the side of the prosecution is alone' examined and the proceeding is entirely ex parte. ’ ’ Brant v. Higgins, 10 Mo. 728; Casperson v. Sproule, 39 Mo. 39; Callahan v. Cafferata, 39 Mo. 136; Sappingtón v. Watson, 50 Mo. 83; Sharpe v. Johnston, 59 Mo. 557; Sharpe v. Johnston, 76 Mo. 660; Eagleton v. Kabrich, 66 Mo. App. 236. (8) On principle there can be no distinction between the discharge of plaintiff by the first tribunal before which he can be taken on the evidence of the prosecution alone in cases of an alleged violation of a municipal ordinance, and a similar discharge by the magistrate in cases of misdemeanor or felony. Coffey v. Myers, 84 Ind. 105; Zebley v. Storey, 12 Atl. Rep. 569; Lynch v. Railway, 90 N. T. 77.
Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.
