* Corpus Juris-Cyc. References: Appeal and Error, 3CJ, p. 889, n. 16; 4CJ, p. 1025, n. 71; p. 1045, n. 48; p. 1048, n. 76; Criminal Law, 16CJ, p. 921, n. 92; p. 926, n. 62; p. 929, n. 86; p. 939, n. 32 New; Malicious Prosecution, 38CJ, p. 432, n. 87; p. 438, n. 61; p. 443, n. 5 New; p. 444, n. 17; p. 495, n. 29; p. 512, n. 9; Trial, 38Cyc, p. 1618, n. 36; p. 1711, n. 19; p. 1785, n. 90. This is an action for damages for malicious prosecution and for assault and battery. The cause was filed in Cedar county, but the venue was changed to Polk. The issues were submitted to a jury, resulting in a verdict on the count for malicious prosecution in the sum of $1000 for actual damages and $750 for punitive damages. On the count for assault and battery the verdict was for $500 for actual damages and $300 punitive. Motion for a new trial was duly filed. Plaintiff filed a remittitur of $450 of the actual damages found on the count for assault and battery. Judgment, after the remittitur, was entered and defendant appealed.
In the first count of her amended petition plaintiff alleged that on September 11, 1924, the defendant maliciously intending to injure her in her good name and reputation appeared before the police judge of the city of Eldorado Springs, and intending to oppress plaintiff and to deprive her of her liberty and to bring shame and disgrace upon her, and without probable cause, charged plaintiff with having committed an act of lewdness, and did maliciously and without probable cause procure said police judge to issue a warrant for the arrest of plaintiff upon said charge. Plaintiff further alleged that she was arrested upon said charge, tried and discharged, and that because of the alleged wrongful prosecution she suffered great in convenience, pain and mental anguish, humiliation, distress, etc. to her damage. *Page 255
The second count of the amended petition alleged that on September 11, 1924, at the City of Eldorado Springs defendant without cause or provocation wilfully, wrongfully and unlawfully assaulted, and beat plaintiff, etc.
In answer to the first count defendant admitted that he made the complaint before the police judge, and admitted that plaintiff was arrested on said complaint and gave bail, but denied generally all other allegations. Further answering the first count defendant alleged that before making the complaint before the police judge he consulted the city attorney of Eldorado Springs and other reputable attorneys and in good faith and without malice made a full and complete disclosure of all the facts and circumstances in connection with the alleged offense of plaintiff, and was advised that an offense had been committed by plaintiff, and that on the advice of counsel he made the complaint mentioned in the first count of plaintiff's petition. Further answering the first count defendant alleged that plaintiff was in fact guilty of the offense alleged in the complaint filed before the police judge. Further answering the first count defendant alleged that the city of Eldorado Springs is a city of the fourth class; that plaintiff went to trial in the police court of said city before a jury, and that the police judge, without lawful right, sustained a motion to dismiss, and that therefore that cause is, in legal contemplation, still pending in the said police court and has not been finally terminated.
Defendant's answer to the second count was a general denial. A reply traversed the allegations of new matter contained in the answer. Defendant makes several separate assignments, but these may be grouped as follows: (1) Failure to give defendant's peremptory direction at the close of the case so far as concerned the first count; (2) improper joinder of causes; (3) the giving and refusing of instructions; (4) the admission of evidence.
As we gather from defendant's brief and written argument the demurrer is bottomed upon two propositions: First, that there is no substantial evidence that the prosecution complained of was instituted maliciously and without probable cause; and second, that the cause filed in the police court is, in legal contemplation, still there pending and is not terminated in favor of plaintiff.
Plaintiff was twenty-four years of age and married, but was not, at the time, living with her husband. Her parents resided in Eldorado Springs and she made her home with them. Defendant is a physician and surgeon of Eldorado Springs. In October, 1923, defendant operated upon plaintiff for appendicitis. After her recovery defendant employed plaintiff in his office paying her $30 per month. She assisted about the office and also prepared defendant's breakfast and lunch, and under him she learned to nurse and care for the sick. *Page 256 August 16, 1924, defendant operated upon Meynard Atkinson for appendicitis, and plaintiff nursed Atkinson during his illness. Atkinson was a young business man and married. After Atkinson had sufficiently recovered he went to defendant's office to have his wound dressed and plaintiff assisted in dressing the wound. Plaintiff nursed another patient in town and Atkinson visited this patient a few times and brought some flowers. On the morning of September 11, 1924, defendant operated upon a patient in his office and plaintiff rendered such assistance as was her custom. On this morning plaintiff informed defendant that next day she was going to her husband at Lone Elm, Kansas, and plaintiff says that defendant was provoked when she told him she was going to her husband. On this same morning Atkinson was at defendant's office and solicited defendant to go fishing with him. Defendant declined, but asked Atkinson to go fishing with him. Atkinson also declined.
Defendant started fishing, but found he would have to detour over an unfamiliar road and returned. When he arrived at his office in the afternoon he claimed to have discovered plaintiff and Atkinson in compromising circumstances from which he concluded that his office was being used for immoral purposes. He says that he upbraided them and that Atkinson confessed and sought his forgiveness and begged him not to tell. Plaintiff and Atkinson denied defendant's charges and gave a plausible explanation respecting Atkinson's presence at the office.
Defendant filed complaint with the police judge charging Atkinson and plaintiff with illicit sexual intercourse in a public place. On this charge plaintiff and Atkinson were arrested and the docket of the police judge respecting the trial recites: "When the evidence of the plaintiff was all in, the attorneys for the defendants made a motion to dismiss the case on the ground the plaintiff has failed to prove any of the charges against the defendants which after heated arguments by both sides of the case the court sustains the motion to dismiss the case and taxes the costs against the prosecuting witness."
Defendant testified that he consulted the city attorney before he filed any complaint and other counsel before he filed the amended complaint, and gave to counsel his version of the facts, and in this he is corroborated. But if he did not relate the true facts advice of counsel would be of no avail. [Webb v. Byrd,203 Mo. App. 589, 219 S.W. 683.] The jury did not believe defendant's version of the facts, but by their verdict found plaintiff's version to be the true facts. We do not deem it necessary to any more of the first feature of the demurrer.
Before an action for malicious prosecution will lie the alleged malicious action must have terminated in favor of the party alleging injury. [Weber v. Strobel, 223 S.W. (Mo. Sup.) 925.] Eldorado *Page 257 Springs is a city of the fourth class. By section 8432, Revised Statutes 1919, it is provided that persons charged with a violation of a city ordinance of a city of the fourth class shall be entitled to trial by a jury as in prosecutions before a justice of the peace. In a jury trial before a justice of the peace the jury is the sole judge of the law and the evidence. [State ex rel. Schonhorst v. Cline, 85 Mo. App. 628.] A justice of the peace in a jury trial may rule upon the competency of evidence (State ex rel. v. Cline, supra), but not upon its sufficiency. [Fortier v. Ball, 43 Mo. 23; State ex rel. Benson v. Brooks, 167 Mo. App. 619, 150 S.W. 725.] Such in effect is the course of the reasoning in the cases cited. We, therefore, rule that the police judge had no lawful authority to sustain the motion to dismiss, and to enter a judgment of dismissal as was done. The cause was being tried before a jury and the jury was the sole judge of the law and the facts.
But is defendant in a position to interpose the police court situation as a defense to this cause? There is nothing here to show that defendant did anything towards the further prosecution of the cause in the police court. If defendant was not satisfied with the disposition made by the police judge he could, at least, have demanded that the city invoke such remedy as the law offord. But so far as appears defendant did nothing, and made no complaint respecting the disposition of the case in the police court until he was hard pressed for a way out of a suit for damages. It is argued that only the city could have proceeded to redress whatever grievance it had because the police judge dismissed the cause in his court, and that therefore defendant is not at fault. But as we have stated there is nothing here to show that defendant did anything towards the further prosecution of plaintiff in the police court or elsewhere after the police judge dismissed. Defendant was not confined to the police court for redress if plaintiff and Atkinson were guilty as he claimed.
Section 9343, Revised Statutes 1919, provides for an appeal from a judgment of a mayor or police judge of a city of the fourth class, and further provides that such appeal may be taken by either the city or the defendant. Had defendant in the cause at bar in good faith asked the city attorney to prosecute an appeal from the order of the police judge dismissing the city case, or to seek mandamus against the police judge to compel him to proceed with the cause in his court, and had the city attorney refused, then defendant in the cause at bar would not be confronted with the question of abandonment based on his own conduct. Had such appeal or mandamus been sought and had either been granted then the validity of the order of dismissal could have been determined in a court of record. Had the appeal been granted, regardless of the right to appeal from the void order of dismissal, the validity of the order of dismissal in the police court could at least have been determined in the circuit court and the defendant *Page 258 here absolved from the attitude and position of consenting to and acquiescing in the abandonment of the police court prosecution. But since no steps were taken in any court to further prosecute the police court case that cause should be considered as abandoned.
Even though the dismissal in the police court was wrongful defendant's and the city attorney's subsequent failure to take any steps concerning the matter ought to be considered, and we so consider it, as an abandonment of the prosecution. When a prosecution is abandoned either by the prosecuting attorney or by the complaining witness such is a sufficient termination of the prosecution to meet the requirements respecting termination in an action for malicious prosecution. [18 R.C.L., p. 24; Waters v. Winn, 82 S.E. (Ga.) 537, L.R.A. 1915 A. 601.] It is our conclusion that the court properly refused the demurrer leveled at the evidence on the first count of the petition.
It is contended that plaintiff could not join in the same petition a count in malicious prosecution with a count for assault and battery. The record proper shows that defendant filed a demurrer challenging the petition on the ground of improper joinder, but it is not shown anywhere that this demurrer was ruled upon. In this situation there is nothing for review on this assignment.
Defendant in his brief proper only challenges instructions 1, 2 and 4 given for plaintiff, and complains of the refusal of his instructions G and H. Defendant complains because instruction number 1 submitted to the jury the issue of discharge in the police court. It is contended that such question was one of law and not of fact. If it be conceded that such question is one of law the effect is without consequence, because the trial court would have been justified in instructing that the prosecution commenced by defendant against plaintiff had been abandoned. The jury found that said prosecution had been terminated. No prejudice came to defendant because of the submission of this issue to the jury.
In the instruction on the measure of actual damages plaintiff included among the elements to be considered the reasonable value of the time necessarily employed in preparing her defense to the prosecution in the police court. There is no direct evidence as to the time employed or its value. There are facts and circumstances from which an inference might be drawn that plaintiff devoted some time to her defense in the police court, but there is no evidence or inference as to the value of this time. It was not proper under the evidence to include the loss of time among the elements of damage, but in the situation here obtaining we do not believe that the error is reversible. Other elements of damage mentioned in the instruction include mental suffering and injury to reputation. Mental suffering and injury to reputation in a cause for malicious prosecution would depend largely *Page 259 upon the nature of the charge upon which the action for malicious prosecution is founded. The nature of the charge preferred against plaintiff by defendant struck directly at her reputation and was one most likely, if false, to bring to plaintiff the extreme in mental suffering. The actual damages awarded on the first count was $1000. There is no assignment that the verdict is excessive. In view of the absence of an assignment on the amount of the verdict, and the amount of the verdict for actual damages on the first count and the nature of the charge made against plaintiff by defendant we do not believe that we should reverse this judgment because of error in instruction number 2. We do not believe that defendant was prejudiced in the least by this instruction. [See Clark v. Tuttle, 189 S.W. (Mo. App.) 616.]
Plaintiff's instruction number 4 is challenged because it omits the phrase "without legal justification or excuse" in defining malice in law. The instruction defined malice in law as a "wrongful act done against a person intentionally." This question was before the St. Louis Court of Appeals in Waddell v. Krause,210 Mo. App. 117, 241 S.W. 964. Judge DAUES, speaking for the court in a somewhat extensive consideration, reached the conclusion that in view of other instructions in the case the omission was not reversible error. All that was included in other instructions as appears from the opinion, in the Waddell case, is included in other instructions in the case at bar. Hence the reasoning in the Waddell case, which reasoning is eminently sound and logical, is applicable to our case. We could not add to the clarity of the law upon the question by further discussion. In view of the other instructions we rule against defendant on this assignment.
Defendant complains of the refusal of his instructions G and H. Instruction G was to the effect that the issue on the first count was not whether plaintiff was guilty of lewd and lacivious conduct, but the question was: Did defendant have probable cause for believing she was guilty? While this instruction might have been given yet the same direction, but in somewhat different words, was contained in plaintiff's instructions and also in defendant's instruction number 9. Hence it was not error to refuse this instruction.
Instruction H advised that as to the second count there was no evidence of a permanent injury. Plaintiff made no attempt to prove any permanent injury resulting from the alleged assault, and the question of permanent injury was not submitted. The judgment, after remittitur, for actual damages on the assault count was only $50. There was no place for instruction B and clearly defendant was not prejudiced by its refusal.
Defendant complains of the admission of evidence as to the conduct of the city marshal in making the arrest and thereafter. This assignment is based on the theory or contention that evidence as to the *Page 260 conduct of the marshal towards plaintiff when he arrested her on the charge preferred by defendant tended to prejudice the jury in favor of plaintiff and against defendant. There is no evidence that the marshal did anything out of the ordinary, or in anyway abused or attempted to abuse his official authority. Defendant cites Vansickle v. Brown, 68 Mo. 627, to support this assignment. But there the evidence held to be incompetent was the conduct of the arresting officer in the abuse of his authority. Plaintiff in the cause at bar was permitted to relate that she accompanied the marshal from the time of the arrest until she gave bond for her appearance. This covered only a short period of time and there is not a word of evidence that the marshal did anything or said anything that could have been in the least objectionable. We rule that this assignment is without merit.
We have carefully examined the assignments presented in defendant's brief and we find no substantial error. The cause was well tried and all issues were fairly submitted. The judgment should be affirmed and it is so ordered. Cox, P.J., andBailey, J., concur.