dissenting.
I respectfully dissent to that part of the majority opinion which affirms the judgment against Mendenhall. In my opinion there is no substantial evidence in the record to sustain the judgment.
To properly understand the exact issue in this case, a true picture of the facts is necessary. Briefly, but essentially, it is as the following:
Some people in an automobile fired shots into Mendenhall’s home on a Saturday night. He, his wife, and his father-in-law then went up town in an effort to apprehend the raiders. There several people jumped on him and gave him a severe beating. He had Hill and five other men arrested. All were found guilty except Hill. Then Hill sued Mendenhall for malicious prosecution.
Before Hill was entitled to recover lie had the burden of proving Mendenhall did not have reasonable grounds to believe Hill was present and took part in the fight. See: St. Louis, I. M. & S. Ry. Co. v. Tyus, 96 Ark. 325 (at page 331), 131 S. W. 682, where the applicable rule was stated by this court in these plain and concise words: “While slight and groundless suspicion would not be sufficient, a belief or suspicion, well founded or based upon reasonable and probable ground, would be.”
What did Hill prove in this case to show Mendenhall did not have a good reason to think he was present? Merely and solely that five of Hill’s co-defendants didn’t see him there. Some of them said it was too dark to see everyone; some said they only meant that Hill was not in the car with them. At best, this was negative testimony.
In my opinion the above was not sufficient to sustain a judgment against Mendenhall. In the case of McNeal v. Millar, 143 Ark. 253, 220 S. W. 62 and also in 34 Am. Jur. at page 783, it is made clear that it is of no significance that, on the trial of Hill, he came clear. This is true because it has nothing to do with Mendenhall’s good faith. Likewise and for the same reason no significance should be attached to the fact that the jury, in this case, found Hill was not guilty or was not present. Hill’s own witness testified that Mendenhall had no reason to be mad at Hill.
What positive evidence was there to show Mendenhall acted in good faith in having Hill arrested? One, his wife said Hill was present. Two, his father-in-law said Hill was present. Three, he said Hill was present and that Hill was the one who kicked him most when he was on the ground.
Could Hill have been present? The uncontradicted evidence shows that he left his house that night at a time consistent with his presence at the fight.
The majority opinion in effect says that if Mendenhall had just told the jury he was honestly mistaken the result might have been different. This is an admission that it was not sufficient for the jury to find Hill was not there. Yet the burden was on Hill and still all he tried to prove was his absence and nothing more. In my opinion all of the positive proof in this record tends to show Mendenhall acted in good faith.
The reason why I lay such stress on this matter is that I think the implications of the majority opinion tend to discourage good citizens from cooperating in law enforcement, and they could lead to great injustices. A simple example will illustrate. Three hoodlums, A, B, and C rob and beat D (who is wealthy) in the presence of his wife and son. D has the hoodlums arrested and A sues D for malicious prosecution. B and C swear A was not present, and D and his wife and son swear they saw A. Then what? I shudder to think of this court sanctioning a rule that would allow A to win. Yet, in some way, I think this is what the majority opinion has done.