Relator seeks by writ of certiorari to review the opinion of the Kansas City Court of Appeals and quash the judgment entered by that court affirming a judgment for $750 actual and $250 punitive damages rendered by the Circuit Court of Dekalb County in an action for damages for malicious prosecution brought by one Albert Cornelius against Moses Mann (relator herein).
The evidentiary facts in the case are thus stated in the opinion of the Court of Appeals:
"Defendant caused an information to be filed in the Circuit Court of Daviess County by the prosecuting attorney of that county, charging plaintiff with stealing a `steel tank of the value of $17.50.' A warrant was issued and plaintiff arrested. The case was thereafter dismissed, and plaintiff thereupon brought this action for malicious prosecution and obtained judgment for both actual and punitive damages.
"It appears that plaintiff bought a farm from defendant, principally on deferred payments. A steel water-tank was on the place, so situated in a fence as to form a part thereof and so arranged as to be a facility in watering stock. After occupying the farm for two years it became apparent that he could not pay for it, and he re-sold or deeded it back to defendant, remaining in possession another year as defendant's tenant. When plaintiff had taken possession after his purchase of the farm, defendant came to him and told him which of several articles of property did or did not go with the *Page 666 farm under the deed. Among other things he told him the tank did not, but that he would give it to plaintiff, and the latter kept and used it. When plaintiff's year as defendant's tenant expired he moved to a place he had rented, which was about ten miles away in another county, and he took the tank now in controversy with him. It was this taking that defendant claimed was the asportation which he called the theft of the tank, and upon which he based his instigation of the prosecution.
"Shortly after plaintiff was arrested defendant instituted an action of replevin for the tank in the county to which it had been taken by plaintiff. The final result of these actions, civil and criminal, was that the former was decided for this plaintiff and the latter was dismissed.
"There was evidence tending to show that before making affidavit to the information filed against plaintiff, defendant laid the facts before the prosecuting attorney and he advised that a crime had been committed."
Relator assigns as error: (a) The giving of four certain instructions for plaintiff, which are claimed to be in conflict with controlling decisions of this court, and (b)Conflict With the admission in evidence of the judgment in theOther Opinions replevin suit mentioned in the opinion, contraryof Courts of to previous rulings of this court. These allegedAppeals. errors we shall discuss scriatim. In view, however, of our well established rule to disregard, on certiorari, any alleged conflict with opinions of the several Courts of Appeal, we shall not advert to the decisions of Courts of Appeal cited by relator in behalf of the relief sought.
I. With reference to the instructions, the Court of Appeals, in its opinion, has the following to say:
"A number of instructions were given by the trial court for each party and a number offered by defendant wereInstructions: refused. Complaint is made of the action of theActual and court in giving those for plaintiff and inPunitive refusing those refused for defendant. All-toldDamages. there were eighteen or *Page 667 twenty given, and there were eight refused for defendant.
"Those given for plaintiff properly covered every phase of a case of this nature. Malice and probable cause are defined, and so is defendant's duty in seeking the advice of the prosecuting attorney as to the guilt of plaintiff; and to these was added a definition of petit larceny as applied to the taking of the water tank. [Fugate v. Millar, 109 Mo. 281.]
"Those given for defendant were the converse of those for plaintiff, and were made applicable to those matters of defense which would authorize and make necessary a verdict for defendant. There can be no doubt that taking all the instructions together as a series (Fugate v. Miller, supra) they put the case for both sides in such way as to leave no room for misunderstanding by the jury.
"There is much in those refused which is found in those given and there was no necessity for repeating.
"All in those refused which was proper was included in instructions given."
Relator contends that Instruction No. 10 is in conflict with Nicholson v. Rogers, 129 Mo. l.c. 141, for the reasons that the instruction "is a direction to the jury to award both actual and punitive damages," that "the jury must first find actual or express malice before they may in their discretion award punitive damages," and that "punitive damages are furthermore entirely in the discretion of the jury." Instruction No. 10 is as follows:
"The court instructs you that if you should find the issues for the plaintiff you may take into consideration in estimating his damages, and award the plaintiff such sum as will compensate him for mental anxiety, occasioned by reason of said charge, and for mental suffering occasioned by said arrest, if you believe such was the case; together with such damages as you may, from the evidence, believe the defendant should be punished with, taking also into consideration the defendant's ability, his position in society, his standing in the community, *Page 668 not, however, exceeding the amount sued for, seven thousand five hundred dollars ($7,500)." A scrutiny of the instruction held erroneous in Nicholson v. Rogers, supra, discloses that it read in part as follows:
"The jury must assess such an amount of damages in his behalf as they may deem proper under the view of the whole case to compensate him for the mortification and shame he may have suffered, . . . as well as to punish the defendant for hiswrongful and malicious conduct." (Italics ours).
As the court there said, "the instruction undoubtedly directs the jury, as though defendant was entitled to punitory damages as a matter of legal right." Such instruction was clearly mandatory. But the instruction under review is not mandatory. The language is, "If you should find the issues for the plaintiff you may take into consideration . . . together with such damages as youmay, from the evidence, believe the defendant should be punished with," etc. Manifestly the jury were left free to exercise their discretion.
The question af actual or express malice not being present and having not been ruled on in the Nicholson case, there can be no conflict with the opinion of the Court of Appeals on that score.
The point made must accordingly be ruled against relator.
II. Relator next urges that Instruction No. 9 is in conflict with Smith v. Burrus, 106 Mo. 99, for the reason that the instruction told the jury that "the dismissal ofEvidence of the information by the prosecuting attorney wasProbable Cause: evidence that the prosecution was withoutDismissal of probable cause." Instruction No. 9 is asProsecution. follows:
"The court instructs the jury the issue for them to try in this case is not the guilt or innocence of Albert Cornelius of the crime alleged against him in the affidavit, but the issue is whether from the facts and circumstances given in the evidence the defendant acted *Page 669 maliciously and without probable cause, and on this issue you are further instructed by the court that the discharge of the plaintiff or the dismissal of the information by the prosecuting attorney is evidence that the prosecution was without probable cause, but not conclusive of that fact."
While the case cited would at first impression seem to substantiate relator's insistence, nevertheless, a further investigation serves to demonstrate its unavailability. The reasoning of the rule there announced is predicated upon an extract from Cooley's Law of Torts, reading in part; "And the mere discontinuance of a criminal prosecution, or the acquittal of the accused, will establish for the purposes of this suit neither malice nor want of probable cause." However, this doctrine is in part contrary to our most recent pronouncement in Hanser v. Bieber, 271 Mo. 326, where WALKER, J., upon a thorough review of the cases bearing upon the subject, speaking for the court, said, at page 342: "Holding, as we do, that the judgment of conviction here does not constitute probable cause, it follows that the acquittal of the plaintiff in the Court of Criminal Correction constituted, under our rulings, persuasive evidenceof want of probable cause," citing several prior decisions so holding. (Italics ours). Hence, if an acquittal is persuasive evidence of want of probable cause, by a parity of reasoning the same rule should apply upon the dismissal of a criminal information. The ensuing conclusion, therefore, is that the instruction complained of by relator is in harmony with our latest and controlling decision.
Furthermore, it cannot be said that the instruction is in conflict with the Smith case, supra, for the reason that the dismissal of the suit there involved was a civil action for slander instead of a criminal proceeding as here, and, as we have often ruled, on certiorari to the Courts of Appeal we are only concerned with whether upon the facts stated in its opinion, the Court of Appeals announced some conclusion of law contrary to the last previous ruling of this court upon the same or a similar *Page 670 state of facts. [State ex rel. American Packing Co. v. Reynolds,287 Mo. 697: State ex rel. Peters v. Reynolds, 214 S.W. l.c. 122; State ex rel. Mechanics Amer. Natl. Bank v. Sturgis, 208 S.W. l.c. 462; Majestic Mfg. Co. v. Reynolds, 186 S.W. 1072.]
III. Relator further insists that Instruction No. 2 is in conflict with Boeger v. Langenberg, 97 Mo. l.c. 396, 397. Instruction No. 2 is as follows:
"By probable cause is meant `a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man in his belief that theProbable accused is guilty of the offense with which he isCause: charged.' `Malice' means a wrongful act doneDefinition. intentionally, without legal justification or excuse."
Probable cause, as relied upon by relator, is thus discussed and defined in the Boeger case, supra: "A definition of probable cause sufficiently exact to meet satisfactorily every possible test would be difficult, if not impossible, to furnish. The complete legal idea expressed by that term is not to be gathered from a mere definition. But, perhaps, with reference to many practical cases, it may be nearly accurate to say that probable cause consists of a belief in the charge or facts alleged, based on sufficient circumstances to reasonably induce such belief in a person of ordinary prudence in the same situation." Relator's particular objections to the instant instruction, and the comment of the Court of Appeals thereon, are thus expressed in a supplemental opinion of the court, rendered upon a rehearing granted in the case:
"Instruction No. 2, defining probable cause, is objected to on the ground that it prescribes too strong a test of defendant's belief in plaintiff's guilt, when he begun the prosecution. The particular complaint is that the instruction declares that to justify a belief in plaintiff's guilt the circumstances must be `sufficiently strong in themselves to warrant a cautious man in his belief that the accused is guilty of the offense with which he is *Page 671 charged.' Defendant claims that the word `cautious' should have been qualified so as to read `reasonable and cautious.' We think the criticism is hypercritical. Especially is this true when defendant himself had the court give Instruction No. 4 defining probable cause as such circumstances as would induce such belief in the mind of an `ordinarily reasonable and cautiousperson.' We are aware that instructions for one party should not be contradictory of instructions on the same subject for the other party. But these are certainly not of that character."
The conclusion of the Court of Appeals comports with our views, particularly with relation to the alleged conflict being cured by the giving, at the instance of relator, of Instruction No. 4, the relevant portion of which is as follows:
"You are instructed that the term `probable cause' as used in these instructions, means belief by defendant, Mann, in the guilt of the plaintiff, based upon such facts and circumstances as would induce such belief in the mind of an ordinarily reasonable and cautious person."
Furthermore, an instruction defining "probable cause," of which the instant instruction is a counterpart, was held not misleading in Fugate v. Millar, 109 Mo. l.c. 285, 290, decided later than the Boeger case.
A like claim of error with respect to Instruction No. 1 is also pressed upon our attention. Such claim, however, has less merit than the insistence with respect to Instruction No. 2.
We must accordingly disallow both claims.
IV. Relator finally contends that the judgment rendered in the replevin suit, which was filed after the issuanceRuling on of the information in the criminal prosecution,Evidence: was improperly admitted in evidence, contrary toReplevin: rulings of this court in Carp v. InsuranceNo Exception. Company, 203 Mo. 295, l.c. 338, and Vansickle v. Brown, 68 Mo. 627, l.c. 632, 633. *Page 672
The opinion of the court of Appeals bearing upon the admission of said judgment is as follows:
"Much complaint is made of the rulings of the trial court on the evidence and of the impropriety of remarks made by the court and misconduct of counsel for plaintiff. An examination shows that to the rulings on the principal part of these matters no exceptions were taken; and in the few instances where exception was taken no reason is given for the objection. Much space is taken up in the endeavor to show objectionable matter which we think is without a sound foundation. Chief among these is complaint against court and counsel in reference to the replevin suit to which we have already referred. This we find so intimately connected with the issues in the present case as to have been proper as well as unavoidable."
While we do not fully concur in the reasoning of the Court of Appeals, nevertheless, the opinion having directed our attention to the fact that no exception was taken as to the ruling of the court on the admissibility of the evidence complained of, we hold to the belief that the Court of Appeals arrived at the correct result. Had exception been saved, a conflict with the cases cited might have been engendered. But even so, such conflict alone would have scarcely been sufficient to have warranted our quashing the judgment of the Court of Appeals as an entirety.
A painstaking review of all of the questions ably presented by learned counsel for relator serves to convince us that the writ herein was improvidently granted and should be quashed.
It is so ordered. All concur, except J.T. Blair, J., who dissents. *Page 673