ON MOTION FOR REHEARING. [7] On motion for rehearing respondent contends that the opinion, supra, squarely conflicts with the case of Stubbs v. Mulholland, 168 Mo. 47, 67 S.W. 650, 651; that under the evidence in the record "there was an absolute duty upon defendant to make decent inquiry as to available facts, which would have shown that it was highly unlikely that plaintiff would commit the crime charged; and *Page 380 that such failure under the settled law of the state was sufficient for the jury to believe and find that the prosecution was reckless and without probable cause." In the opinion, supra, we ruled that plaintiff did not make a case for the jury because the prima facie proof of probable cause shown by plaintiff's own evidence was not overcome. The motion for rehearing is not directed to this particular issue.
In the Stubbs case, the plaintiff in the malicious prosecution suit had been discharged upon preliminary hearing and it was held that proof of such "discharge of the plaintiff established prima facie a want of probable cause." (168 Mo. 47, 73.) The court further said: "That probable cause was wholly lacking in this case is shown prima facie by the discharge of the accused. This alone would call upon defendants for their defense." (168 Mo. 47, 77.) In the case at bar, respondent concedes and pleads the fact of her indictment by a grand jury and her own instructions offered at the trial conceded that in order to overcome the prima facie proof of probable cause arising from the fact of such indictment it was necessary for her to prove that defendant "acting through its agents and representatives as aforesaid, did wilfully, maliciously and without probable cause aid, advise or procure the finding of said indictment by false testimony before the grand jury, which testimony, if any, was known by said agents and representatives of Montgomery Ward and Company to be false, or which they could by reasonable care and due diligence have ascertained to be false, if the same was false."
In the Stubbs case the court said: "In order to support such an action as that of the case at bar, two ingredients must come together; first, malice on the part of the prosecutor; second, the want of probable cause for the prosecution. Absent either of these, the action for malicious prosecution fails. . . . And it has been ruled that whenever a prosecution is shown to have been made without probable cause, there the burden is cast upon the defendant's shoulders to show want of malice." (168 Mo. 47, 74.) The court further said: "Proof of malice does not prove want of probable cause. `Malice, however, need not be proved by direct and positive testimony, but may be inferred from the facts which go to establish the want of probable cause; and this is all that is meant when it is said that malice may be inferred from want of probable cause.' Sharpe v. Johnston, 59 Mo. l.c. 575, 576." (168 Mo. 47, 75.)
After holding that "the discharge of the plaintiff established prima facie a want of probable cause" the court turned to the evidence on the issue of malice on the part of [515] prosecutor. Dealing with such issue the court said: "`Malice may not only be presumed from the total absence of probable cause; but also from gross and culpable negligence in omitting to make suitable and reasonable inquiry.' Wiggin v. Coffin, 3 Story C.C. 1. Did defendants, or either of them, or those acting under them, make such suitable and reasonable inquiries?" (168 Mo. 47, 77.) *Page 381
There was affirmative evidence of the good character and reputation of the plaintiff in the Stubbs case, (168 Mo. 47, 58, 62), and other evidence of plaintiff's innocence. After the discussion of the evidence at some length with reference to the absence of such inquiries by defendants, the court finally held: "The failure, therefore, on the part of Mulholland and of his lieutenants to make inquiries of W.G. Thompson, plaintiff's partner, when inquiries were so easy, and ascertainment of truth so sure, was therefore the failure to make suitable and reasonable inquiries, and therefore, under the precedent authorities, proof of gross and culpable negligence, and, therefore, proof of malice. . . . For, . . .; if the prosecution is reckless and unreasonable and instituted with a gross disregard of the rights of the party to be arrested, then proof of these things proves malice, and, malice being proven, is exclusively for the determination of the jury." (168 Mo. 47, 82-83.)
We find nothing in the holding in the Stubbs case which in any manner conflicts with our ruling, supra. It is apparent that failure to investigate the plaintiff's reputation and character in the Stubbs case was considered by the court with reference to the issue of malice, while respondent here seeks to apply such holding to the issue of probable cause in a case where plaintiff's own evidence makes a prima facie case of probable cause by reason of the conceded indictment and where there was no affirmative evidence of the good character or reputation of plaintiff. In this case in the absence of affirmative evidence of the good character or reputation of plaintiff, a jury could consider no presumption of good character or reputation on the issue of probable cause, because of plaintiff's own proof of her indictment for the offenses charged made prima facie proof to the contrary. Plaintiff failed to make a case solely because her evidence failed to show that defendant acted without probable cause, but on the contrary plaintiff showed that defendant had probable cause for the prosecution.
The statement by the court in the Stubbs case that "such inquiries (concerning the good character and good reputation of Stubbs) were `ascertainable facts' having a direct and pertinent bearing on the question of probable cause" cannot aid respondent under the record in this case where respondent's own evidence made out a prima facie case of probable cause, and where the burden of proof rested upon respondent to rebut the presumption arising by reason of the indictment. Respondent here must upset the fact of the indictment by showing that it was obtained by false testimony, known to be false or was obtained by testimony which was recklessly made without reasonable grounds when it could have been ascertained to be false.
We are here concerned with the question of a reasonable investigation only as it relates to the issue of want ofprobable cause for a prosecution in a case where an indictment is admitted and where a prima facie case of probable cause for the prosecution has been made out by plaintiff's own evidence. We are not concerned with lack of such *Page 382 investigation on the issue of malice. The question of investigation or no investigation prior to the prosecution is material in this case only if the evidence (1) showed open and notorious facts which would have convinced a reasonably prudent man that plaintiff was not guilty (and, therefore, that the testimony upon which the indictment was obtained was false and untrue), and (2) that defendant knew such open and notorious facts or by such an investigation as a reasonable man actuated by honest motives would have made would have discovered such facts. In the case at bar, unless there was evidence of such facts there was no case for a jury. Plaintiff's own instructions conceded the necessity for the existence of ascertainable facts, which defendant might have discovered by due diligence, which facts would have convinced a reasonably prudent man that plaintiff was not guilty.
Two charges were made in the indictment, to-wit, forgery and uttering a forged instrument. Plaintiff and her handwriting expert denied that the check was in plaintiff's handwriting while her defense to the second charge was an alibi, all as stated in the opinion. The evidence wholly [516] failed, as a matter of law, to show ascertainable facts discoverable by reasonable care and due diligence which would have convinced a reasonable man that plaintiff was not guilty of the crimes charged.
It is unnecessary to discuss other matters raised by the motion, since they are fully covered in the opinion. The motion for rehearing is overruled. Hyde and Bradley, CC., concur.