Opposition Brief — Lucas v. Daniel International Corp.

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No. 84-1631 ol ey

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In the Supreme Court of the United States

OCTOBER TERM, 19384

STEVEN WALTER LUCAS,

Petitioner,

vs.

DANIEL INTERNATIONAL CORPORATION,

Respondent.

BRIEF IN OPPOSITION TO PETITION FOR WRIT

OF CERTIORARI TO THE SUPREME COURT

OF THE STATE OF MISSOURI

HENDREN AND ANDRAE

JoHN H. HENDREN

(Counsel of Record)

KELLY Poo.

GERALD E. ROARK

The Monroe House

235 East High Street, Suite 210

P. O. Box 1069

Jefferson City, Missouri 65102

(314) 636-8135

Attorneys for Respondent

BEST AVAILABLE COPY

QUESTIONS PRESENTED

1. Whether the Supreme Court of Missouri’s opinion

in Lucas v. Daniel International Corporation, 682 S.W.2d

820 (Mo. banc 1984), reversing and remanding the matter

for a new trial, and subsequent Order overruling a motion

for rehearing, constitutes a “final judgment”, which is

required to petition the Supreme Court of the United States

for certiorari.

2. Whether the Supreme Court of Missouri’s opinion

in Lucas v. Daniel International Corporation, 682 S.W.2d

820 (Mo. banc 1984), and subsequent Order overruling a

Motion for Rehearing, rests upon an independent and ade-

quate nonfederal ground which supports the judgment.

3. Whether the issues in the instant case present

special and important questions sufficient to warrant the

issuance of a writ of certiorari.

4. Whether the Supreme Court of Missouri afforded

petitioner due process, as secured by the Fourteenth

Amendment to the United States Constitution, when it

allowed to be filed and subsequently considered petition-

er’s Motion for Rehearing which contained petitioner’s

Constitutional considerations.

5. Whether the Supreme Court of Missouri exceeded

its review power when it reversed and remanded a civil

judgment on the basis of instructional error, as provided

for under state law, when said instructional error was not

expressly presented to or expressly decided by the trial

judge.

6. Whether the Supreme Court of Missouri may re-

verse and remand a civil judgment in Lucas v. Daniel In-

ternational Corporation, 682 S.W.2d 820 (Mo. banc 1984),

to be consistent with the companion case of Sanders v.

Daniel International Corporation, 682 S.W.2d 803 (Mo. banc

1984), which was decided by the same Court on the same

day as the instant action.

TABLE OF CONTENTS

QUESTIONS PRESENTED ..0oo......occccccccecececececcesesecsceeeee I

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CONSTITUTIONAL AND STATUTORY PROVI-

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REASONS FOR DENYING THE WRIT o...----ccccccesss-0-0 5

I. Preliminary Statement 220000000 5

II. Lucas Opinion Is Not a Final Judgment ........ 6

III. Lucas Opinion Rests on Adequate and Inde- :

pendent State Grounds 20200000000. eee cececccceeee 9

IV. No Special or Important Questions Are Pre-

UII sssciciccintdgiaiactibiiaecceduie tear: 10

V. Petitioner Received Due Process Considera-

NER EDIT Og VN ES IR OE 11

VI. Plair: Error May Be Considered on Appeal ...... 12

CPTI | aiinsincigncccstiilitainstsinndgeainicaien abanadmmcaa i ae: 14

COREE Ae CO VI na accscctnttistssctrcnein 14

APPENDIX

(Supreme Court of Missouri’s Opinion in Sanders

v. Daniel International Corporation) _................. Al

III

TABLE OF AUTHORITIES

Cases

Cox Broadcasting Corp. v. Cohn, 429 U.S. 469 (1975) 8

Dept. of Mentul Hygiene v. Kirchner, 380 U.S. 194

I tieseaieia apecsicaetbedhciiesiebecieintsinnhnaetinnondiiinrnanndsaisameienmniitivanenioe 11

Durley v. Mayo, 351 U.S. 277 (1956), reh’g denied, 352

IE IE ettitnce-cesindircebibtsiniaininiitearssocinencnnaensstinianiamannsooni 9

Herb v. Pitcairn, 324 U.S. 117 (1945) ............-........-..2-.+2- 9

Houston v. Moore, 16 U.S. (3 Wheat.) 433 (1818) ........ 8

Kennett v. Akers, 564 S.W.2d 41 (Mo. banc 1978) ........ 13

Loftus v. Illinois, 333 U.S. 804 (1948) .....22022 eee 9

Lucas v. Daniel International Corporation, 682 S.W.2d

820 (Mo. banc 1984) ~...........022.0222.. 1, 1,5, 6, 7,9, 10, 13

Market St. Ry. Co. v. Railroad Commission, 324 U.S.

548 (1945), reh’g denied, 324 U.S. 890 (1945) ........ 7

Murdock v. Memphis, 87 U.S. (20 Wall.) 590 (1874) ... 9

New York v. Cathedral Academy, 434 U.S. 125 (1977) 7

O'Dell v. Espinoza, 456 U.S. 430 (1982) -.000.. ee 7-8

Pettus v. City of St. Louis, 242 S.W.2d 723 (Mo. 1951) 13

Richfield Oil Corp. v. State Bd. of Equalization, 329

ED dels sieceblicnsuipiienaconsnaiaiineeeitaiewtssbeesniammceenintneuses 7

Sanders v. Daniel International Corporation, 682 S.W.2d

BE II IIE BIPIIIED abnidecensovnsasaceansonnccecaenhonsesanen 1, 5, 7,9, 10

standard Oil Co. v. Missouri, 224 U.S. 270 (1912) ........ 11

Statutes

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. Seen pee. ev. . teat. (1878) —.............................. 2

mre Mi PW, MO, CUT I annnnnccisnstnieee 12,13

28 U.S.C. § 1257 (1), (2) and (3) (1976) .ncceeeecccccccseee+- 2,6

Court Rules

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No. 84-1631

In the Supreme Court of the United States

OCTOBER TERM, 1984

STEVEN WALTER LUCAS,

Petitioner,

vs.

DANIEL INTERNATIONAL CORPORATION,

Respondent.

BRIEF IN OPPOSITION TO PETITION FOR WRIT

OF CERTIORARI TO THE SUPREME COURT

OF THE STATE OF MISSOURI

Respondent, Daniel International Corporation respect-

fully submits that the Petition for a writ of certiorari to

the Supreme Court of the State of Missouri should be de-

nied.

OPINION BELOW

The opinion of the Supreme Court of Missouri is found

at Lucas v. Daniel International Corporation, 682 S.W.2d

820 (Mo. banc 1984), and is set out at Appendix Al in

Petitioner’s Petition.

Petitioner’s Request for Rehearing and Order Denying

same is set out at Appendix A7 in Petitioner’s Petition.

JURISDICTION

Respondent disagrees with Petitioner’s Jurisdictional

Statement in that this Court’s interpretation of 28 U.S.C.

§ 1257 (1), (2) and (3) prohibits the granting of a writ

of certiorari.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

In addition to the Constitutional and Statutory Pro-

visions set forth by Petitioner at pages 2-5 of his Petition,

Respondent believes that the following Provisions are to be

considered.

1. Section 477.010, Missouri Revised Statutes (1978),

provides:

The supreme court shall have the power to direct

the form of writs and process; and to promulgate gen-

eral rules for all courts of the state. No such forms

or rules shall abridge, enlarge or modify the substan-

tive rights of any litigant nor be contrary to or in-

consistent with the laws in force for the time being.

2. Section 506.030, Missouri Revised Statutes (1978),

provides:

If any part of this code shall be found to be in con-

flict or discordant with other parts of this code or

with other statutes relating to civil procedure, the

supreme court shall have power to promulgate rules

necessary to harmonize the same so as to promote the

orderly administration of justice. No such rule shall

abridge, enlarge or modify the substantive rights of

any litigant. Such rules shall be effective until super-

seded by legislative enactment.

3. Rule 83.02 of the Missouri Rules of Court provides

as follows:

A case in which an opinion has been filed in a

district of the Court of Appeals may be transferred to

this Court by order of a majority of the participating

judges, regular and special, on their own motion or on

applicatior: of a party, because of the general interest

or importance of a question involved in the case, or for

the purpose of reexamining the existing law. Applica-

tion by a party for such transfer shall be filed within

15 days of the date upon which the opinion is filed.

4. Rule 83.09 of the Missouri Rules of Court provides

as follows:

This Court on its own motion, or an application of

a party, may transfer to this Court from any district

of the Court of Appeals a case in which no opinion has

been filed, such transfer to be for any of the reasons

stated in Rule 83.02 or for the purpose of equalizing

the work load of the appellate courts. Any party re-

questing such transfer shall file an application in this

Court within 10 days after the filing of the transcript

on appeal in the appropriate Court of Appeals district.

In connection with the consideration of an application

for transfer under this rule, this Court may order the

transcript of the record forwarded to it. Applications

for transfer filed pursuant to this rule shall not affect

the time for filing briefs unless this Court so orders.

In the event of transfer under this rule, briefs already

filed in the Court of Appeals shall be considered as

having been filed in this court and briefs not yet filed

in the Court of Appeals on the date of the order of

transfer shall be filed directly in this Court within

the time prescribed for filing briefs where no transfer

is ordered.

5. Rule 84.13 of the Missouri Rules of Court provides

as follows:

(a) Preservation of Error in Jury Tried Cases.

Apart from questions of jurisdiction of the trial court

over the subject matter and questions as to the suf-

ficiency of pleadings to state a claim upon which relief

can be granted or a legal defense to a claim, no allega-

tions of error shall be considered in any civil appeal

from a jury tried case except such as have been pre-

sented to or expressly decided by the trial court.

(b) Materiality of Error. No appellate court shall

reverse any judgment unless it finds that error was

committed by the trial court against the appellant

materially affecting the merits of the action.

affecting substantial rights may be considered on ap-

peal, in the discretion of the court, though not raised

or preserved, when the court finds that manifest in-

justice or miscarriage of justice has resulted therefrom.

STATEMENT OF THE CASE

In addition to the Statement of the Case set forth by

Petitioner at pages 6-9 of his Petition, Respondent believes

that the following material from the record should be con-

sidered in order to have a complete picture of the facts in

this matter.

1. In Respondent’s Motion for a New Trial, at para-

graph number 6, Respondent objected to Jury Instruction

No. 7.

2. Jury Instruction No. 7 is the instruction which con-

tained the term “maliciously” which had to be defined.

3. Instruction No. 5 which defined the term “mali-

ciously” was the instruction which was declared improper

in the case of Sanders v. Daniel International Corporation,

682 S.W.2d 803 (Mo. banc 1984).

4. Counsel for petitioner and respondent in the in-

stant action were also opposing counsel in Sanders v. Dan-

iel International Corporation.

REASONS FOR DENYING THE WRIT

Preliminary Statement

Petitioner’s attempt to state the questions to be pre-

sented under Rule 21.1 is defective, because the questions

are not stated in the terms and circumstances of the case.

The Supreme Court of Missouri did not exceed “the

scope of its review power over civil judgments under state

law” or violate “its own court rules” as stated.

As discussed under Part VI, infra, Missouri Statutes,

Court Rules and case precedent all support the decision and

manner by which the decision in Lucas v. Daniel Interna-

tional Corporation, 682 S.W.2d 820 (Mo. banc 1984), was

reached. No incorrect standards governing the decision or

review were used by the Supreme Court of Missouri.

No special or important questions for review appear

on the surface or even lurk in the background of this case

and none of the parameters of Rule 17.1 have been or can

be distilled from the record of this case.

II.

The Supreme Court’s Opinion Is Not a Final

Judgment for Purposes of Certiorari

Petitioner seeks to invoke the jurisdiction of this Court

pursuant to 28 U.S.C. § 1257 (1), (2) and (3). See Petition,

page 2. Section 1257 provides as follows:

Final judgments or decrees rendered by the highest

court of a State in which a decision could be had,

may be reviewed by the Supreme Court as follows:

(1) By appeal, where is drawn in question the

validity of a treaty or statute of the United States and

the decision is against its’validity.

(2) By appeal, where is drawn in question the

validity of a statute of any state on the ground of its

being repugnant to the Constitution, treaties or laws

of the United States, and the decision is in favor of

its validity.

(3) By writ of certiorari, where the validity of a

treaty or statute of the United States is drawn in

question or where the validity of a State statute is

drawn in question on the ground of its being repugnant

to the Constitution, treaties or laws of the United

States, or where any title, right, privilege or immunity

is specially set up or claimed under the Constitution,

treaties or statutes of, or commission held or authority

exercised under, the United States.

In order for this Court to accept jurisdiction over the in-

stant matter, it must first consider the “threshold” ques-

tion as to whether the decision handed down by the Su-

preme Court of Missouri in Lucas v. Daniel International

Corporation, 682 S.W.2d 820 (Mo. banc 1984), constitutes

a “final judgment”. New York v. Cathedral Academy, 434

US. 125, 128, n.4 (1977).

A state court judgment, to be within appellate juris-

diction of the United States Supreme Court, must be

final in two senses: It must be subject to no further re-

view or correction in any other state tribunal, and it must

be an effective determination of the litigation and not of

merely interlocutory or intermediate steps therein; it must

be the final word of the final court. Market St. Ry. Co.

v. Railroad Commission, 324 U.S. 548, 551 (1945), reh’g

denied, 324 U.S. 890 (1945). Can it be said that there is

nothing more to be decided or that there has been an

effective determination of the litigation? Richfield Oil

Corp. v. State Bd, of Equalization, 329 U.S. 69, 72 (1946).

The Supreme Court of Missouri reversed and re-

manded Lucas for retrial on the basis of instructional error.

Lucas, 682 S.W.2d at 821. Lucas was reversed and re-

manded to be consistent with another opinion which was

handed down by the Supreme Court of Missouri on the

same day. See Sanders v. Daniel International Corpora-

tion, 682 S.W.2d 803 (Mo. banc 1984); “© xders is also set

out at Al of this brief. The sole issue addressed by the

Lucas decision was instructional error.

Respondent admits that the decision handed down by

the Supreme Court of Missouri was rendered by the high-

est court in the State. However, there has not been an

“effective determination of the litigation” since the matter

was remanded for a new trial. When a state Supreme

Court remands the case for trial, its decision is not final

as an effective determination of the litigation and the

United States Supreme Court does not have jurisdiction

to review the matter. O’Dell v. Espinoza, 456 U.S. 430,

430 (1982); Houston v. Moore, 16 U.S. (3 Wheat.) 433, 434

(1818).

This Court has recognized four exceptions to the sit-

uation wherein a case is remanded for trial and the state

court decision is final for purposes of review. Cox Broad-

casting Corp. v. Cohn, 429 U.S. 469 (1975).

[I]n the first two categories considered below, the

federal issue would not be mooted or otherwise af-

fected by the proceedings yet to be had because those

proceedings have little substance, their outcome is

certain, or they are wholly unrelated to the federal

question. In the other two categories, however, the

federal issue would be mooted if the petitioner or ap-

pellant seeking to bring the action here prevailed on

the merits in the later state-court proceedings, but

there is nevertheless sufficient justification for im-

mediate review of the federal question finally de-

termined in the state courts.

Cox, 429 U.S. at 478-79.

Petitioner has failed to put forth any type of argu-

ment or cite this Court to any authority which would place

this Petition squarely within one of the aforementioned

exceptions.

Petitioner’s cause of action survives in the Circuit

Court of Pettis County, Missouri. Petitioner asserts that

Fourteenth Amendment protection extends to Judgments.

If this is the case, then this Court would have to entertain

petitions for writ of certiorari for every State Court Judg-

ment that is or will be reversed and remanded.

III.

The Supreme Court of Missouri’s Opinion Rests Upon

an Independent and Adequate Non-Federal Ground

This Court has consistently stated that it will only

review decisions from the highest State Court where it

affirmatively appears from the record that a Federal ques-

tion was presented to that court. Further, that a decision

on the Federal question was necessary to the determina-

tion of the cause. Where a State Court decision might have

been either on a State ground or on a Federal ground and

the State ground is sufficient to sustain a judgment, the

United States Supreme Court will not undertake to review

the State Court’s judgment. Durley v. Mayo, 351 U.S. 277,

281 (1956), reh’g denied, 352 U.S. 856 (1956). Stated

succinctly, this court will not review judgments of State

Courts that rest on adequate independent State grounds.

Murdock v. Memphis, 87 U.S. (20 Wall.) 590, 636 (1874);

Herb v. Pitcairn, 324 U.S. 117, 125 (1945); Loftus v. Illinois,

333 U.S. 804 (1948).

A review of the opinion handed down by the Supreme

Court of Missouri in Lucas reveals that it is based entirely

on State substantive law and a change thereof. Lucas was

reversed and remanded to be consistent with an opinion

that was handed down by the Supreme Court of Missouri

on the same day, the companion case of Sanders v. Daniel

International Corporation, 682 S.W.2d 803 (Mo. banc

1984). Sanders and Lucas arose out of the same set of

facts and circumstances. In the Sanders opinion, the Su-

preme Court of Missouri reviewed and discussed the law

of malicious prosecution and modified the requirements

thereof.

The modification in Sanders resulted in a change in

Missouri’s common law definition of malice as it relates

to a malicious prosecution action.

This modification in the common law was the entire

basis for the Sanders decision and subsequent basis for the

Lucas decision. It cannot be argued that either the Sanders

or Lucas opinion rested on substantial Federal grounds.

Petitioner’s alleged Federal grounds rest in the fact

that he was denied Constitutional considerations due to

the Supreme Court of Missouri reversing and remanding

the Lucas matter on an instructional error that was not

presented or preserved for appeal. As discussed under

Part VI, infra, the Supreme Court of Missouri may con-

sider errors although those errors were neither presented

to nor preserved for appeal. This Court is asked to review

a decision handed down by the Supreme Court of Missouri

which was based entirely upon the common law of Mis-

souri and a change thereto. Accordingly, this Court should

not assert jurisdiction and entertain this Petition for cer-

tiorari.

IV.

The Instant Case Does Not Present Special or

Important Questions Which Warrant the

Issuance of a Writ

This Court has delineated the classic questions con-

sidered proper for review by writ of certiorari. (Rule 17,

Supreme Court Rules). While these categories are not

' controlling in determining whether this Court will hear

a case, they do provide guidance for those litigants seek-

ing an avenue of review. None of the enumerated con-

siderations set out in Rule 17 are present in the instant

case.

It is the duty of petitioner to show to this Court that

this Court has jurisdiction over the instant case. Dept.

of Mental Hygiene v. Kirchner, 380 U.S. 194 (1965). Peti-

tioner has failed to cite this Court to any authority which

conflicts with the decision of the Supreme Court of Missouri.

As discussed in Part III, supra, petitioner has not put forth

a substantial Federal question which would justify the

granting of a writ. Certainly, no novel issues concerning

the interpretation of Federal laws are set forth in this case

which would require the ultimate resolution by this Court.

The instant case is an example of precisely the type

of case this Court intended to refrain from reviewing when

it drafted Rule 17.

¥.

The Supreme Court of Missouri Considered

Petitioner’s Due Process Claims

Petitioner asserts that he was denied due process be-

cause he was not given notice and opportunity to be heard.

These “onstitutional considerations were first presented to

the Court in petitioner’s motion for rehearing. (See pages

A7 through AQ of petitioner’s brief). The Supreme Court

of Missouri, without opinion, overruled petitioner’s motion

for rehearing.

Petitioner cites this Court to the case of Standard Oil

Co. v. Missouri, 224 U.S. 270 (1912), which requires notice

and opportunity to be heard, due process considerations.

By allowing petitioner to file his motion for rehearing and

subsequently considering said motion, the Supreme Court

of Missouri did exactly what is required by the Standard

Oil decision, to-wit: The Court allowed petitioner his

notice and opportunity to be heard.

VI.

The Supreme Court of Missouri May Consider

Errors Not Preserved for Appeal

Petitioner asserts that the Supreme Court of Missouri

has exceeded its review power when it reverses and re-

mands a civil judgment on the basis of instructional error

when said instructional error was not expressly presented

to or expressly decided by the trial judge.

Section 512.160, RSMo 1978, sets forth the type of ques-

tions which may be considered by an Appellate Court on

appeal in the State of Missouri. The relevant portions of

Section 512.160, for the purposes of the instant matter, are

set forth as follows:

2. No Appellate Court shall reverse any judgment,

unless it believes that error was committed by the trial

court against the appellant, and materially effecting

the merits of the action.

3. The Appellate Court shall examine the tran-

script on appeal and, subject to the provisions of sub-

sections 1 and 2 of this section, award a new trial or

partial new trial, reverse or affirm the judgment or

order of the trial court, or give such judgment as such

court, ought to have given, as to the Appellate Court

shall seem agreeable to all. Unless justice requires

otherwise the court shall dispose finally of the case

on appeal and no new trial shall be ordered as to issues

in which no error appears.

As petitioner asserts, the general rule is that in order

for a question to be presented to the appellate court, said

question must have been presented to and expressly decided

by the trial judge. There is one notable exception to this

general principle which is specifically set out in the Mis-

souri Rules of Court. (Rule 84.13, Missouri Rules of Court).

Specifically, Rule 84.13(c) provides as follows:

affecting substantial rights may be considered on ap-

peal, in the discretion of the court, though not raised or

preserved, when the Court finds that manifest injustice

or miscarriage of justice has resulted therefrom.

Petitioner asserts that by considering an instructional

error not properly preserved, the Supreme Court of Mis-

souri violated the terms and provisions of Section 512.160,

Mo, Rev. Stat., 1978. This is simply not the case.

Under statutes authorizing Appellate Courts to give

such judgments as trial courts should have given, plain

errors affecting substantial rights may be considered on

appeal, though not preserved for review. Pettus v. City of

St. Louis, 242 S.W.2d 723 (Mo. 1951). This case illustrates

how Rule 84.13 and Section 512.160 are intertwined and

consistent with one another.

It is difficult to conceive what would be more preju-

dicial than an instruction which incorrectly states the law

as to the definition of the requisite intent necessary to have

committed the tort of malicious prosecution. The law in

Missouri is clear that an error in an instruction is pre-

sumed to be prejudicial and should be reversed if it affects

the merits of the action. Kennett v. Akers, 564 S.W.2d 41,

48 (Mo. banc 1978). An incorrect definition of the requisite

intent affects the merits of the action.

By virtue of Section 512.160 and Rule 84.13, the Su-

preme Court of Missouri had the statutory authority to

reverse and remand Lucas for trial on the basis of instruc-

tional error.

CONCLUSION

For the foregoing reasons, respondent respectfully sub-

mits that the Petition for a Writ of Certiorari to the Su-

preme Court of the State of Missouri should be denied.

Respectfully submitted,

HENDREN AND ANDRAE

JoHN H. HENDREN

(Counsel of Record)

KELLY POOL

GERALD E. ROARK

The Monroe House

235 East High Street, Suite 210

P. O. Box 1069

Jefferson City, Missouri 65102

(314) 636-8135

Attorneys for Respondent

CERTIFICATE OF SERVICE

I, the undersigned, do hereby certify that three true

and correct copies of the foregoing were mailed, postage

prepaid, this 13th day of May, 1985, to Mr. Richard G.

Callahan, Rost & Callahan, 109 East High Street, Jefferson

City, Missouri 65101.

JOHN H. HENDREN

APPENDIX

(Filed December 18, 1984)

SUPREME COURT OF MISSOURI

EN BANC

Robert A. Sanders, )

Respondent, )

v. ) No. 65529

Daniel International Corporation, _)

Appellant. )

Appeal From the Circuit Court of Phelps County

Honorable Weldon W. Moore, Judge

This case involves a malicious prosecution action

brought by respondent, Robert A. Sanders. At trial, the

jury returned a verdict in favor of respondent, awarding

him $100,000 in actual damages and $250,000 in punitive

damages. We ordered the cause transferred after the

Southern District affirmed the judgment. We reverse and

remand.

The criminal prosecution forming the basis for this

malicious prosecution action was a misdemeanor case in

which respondent was charged with the attempted theft

of tools and gauges valued over fifty dollars. Respondent

was one of seven persons charged with that crime. The

information was sworn to by the prosecutor following a

conversation in his office with a:ents of appellant, Daniel

Internationa] Corporation. The prosecutor dismissed the

[2] misdemeanor action because he believed that insuf-

ficient evidence existed to proceed with the trial. Re-

spondent then filed this action for malicious prosecution.

At the time the information was filed, appellant was

engaged in the construction of a nuclear power plan [sic] in

Callaway County, Missouri for Union Electric Company.

The construction project required more than 2,700 workers,

and the company had crews working day and night shifts.

Union Electric owned all the tools used on the job, and

pursuant to a contract appellant was responsible for and

controlled the purchase, allocation and use of all the tools.

The individual workers did not bring their own tools

onto the job site. Appellant issued individual tool boxes

to each worker, and the workers were allowed to keep

their tool boxes in larger “gang boxes” assigned to each

crew. The crew foreman kept each gang box locked.

Additional tools could be checked out from a “tool room”

and were to be returned to the tool room at the end of

the day.

Prior to December 1978, tool theft and tool hoarding

had been a recurring and expensive problem. Posted

on the fence surrounding the job site were signs warning

that persons caught removing tools from the project would

be subject to prosecution. Pinkerton security furnished

personne] to control perimeter access to the job site.

Respondent was «© member of Crew 52, a night-shift’

pipefitting crew consisting of a foreman and eight crew

members. On the morning of December 20, 1978, a day-

shift pipefitting crew, Crew [3] 5, reported to work and

discovered that its gang box had been broken into. The

lock on the gang box had been cut with a pair of bolt

cutters. A quick investigation revealed that a member

of Crew 52, Gus Groves, had checked out bolt cutters

from the tool room on the previous night. In the presence

of Superintendent Terry Heers, security guards opened

the Crew 52 gang boxes with a master key. At the top

of one of the gang boxes was a set of welding gauges,

the hoses of which had been cut recently. These cuts

matched the other ends of the hoses that remained in

the Crew 5 gang box. Also present in a Crew 52 gang

box was a pair of welding leathers belonging to a member

of Crew 5.

Heers directed that an inventory be made of the

tools in the Crew 52 gang boxes. The gang boxes and

the individual tool boxes that were inside the gang boxes

were emptied and all of the tools of a particular kind

were put in a pile for inventory purposes. Some of the

tools in the gang boxes were in individual tool boxes

and some were not.

Next, Heers discussed the situation with Service Man-

ager Gary Warblow and with Assistant Project Manager

Wallace Sykora. They decided to go to the sheriff’s office

to discuss the problem. The sheriff sent Warblow and

Heers to the prosecutor’s office, where they met with

Callaway County Prosecutor Gene Hamilton. Hamilton

testified that Warblow and Heers initially asked him about

the possibility of search warrants for the houses of seven

members of Crew 52, and he told them that search war-

rants were not possible because (1) the seven people

resided outside of Callaway County and the warrant would

be limited to that county; and (2) there was [4] no

showing that tools had been taken from the plant or that

they were actually located in their houses. He said that

no probable cause existed to search their houses. After

a conversation lasting approximately a half hour, Heers

and Warblow, at the suggestion of the prosecuting at-

torney, signed a blank complaint against respondent.

Hamilton then filed an information upon which an arrest

warrant was issued. On February 15, 1979, Hamilton

dismissed the charges against Sanders.

Appellant raises a number of issues on appeal. First,

we must address appellant’s argument that respondent

failed to establish all of the elements of the tort of malicious

prosecution, particularly the requisite “malice.” This in-

volves examining whether MAI 16.01 (1981) correctly

defines malice for a malicious prosecution. MAI 16.01

provides, in part, that malice is “the doing of a wrongful

act intentionally without just cause or excuse.” Also in-

volved is a determination of whether this same instruction

should be used when instructing the jury on punitive dam-

ages in a case involving a malicious prosecution.

Actions for malicious prosecution have never been

favorites of the law. There is almost universal agreement

that sound public policy dictates that the law should en-

courage the uncovering and prosecution of crime. Any

“policy that discourages citizens from reporting crime or

aiding in prosecution would be undesirable and detrimental

to society in general.” Cates v. Eddy, 669 P.2d 912, 917-18

(Wyo. 1983). Courts have always recognized that

“(mJalicious prosecution is an action which tends to dilute

the [5] public policy of encouraging persons having knowl-

edge of possible crimes to cooperate with public officers.”

Seelig v. Harvard Cooperative Society, 1 Mass.App. 341,

296 N.E.2d 825 (1973). See also Bonzo v. Kroger Grocery

& Baking Co., 344 Mo. 127, 125 S.W.2d 75 (1939); Muza

v. Cash Bargain Lumber Co., 586 5.W.2d 403, 406 (Mo.

App. 1979). The nature of this cause of action, therefore,

has led courts to require strict proof of each element of

the tort. See L. Green, Judge and Jury 338 (1930). See

also Higgins v. Knickmeyer-Fleer Realty & Investment

Co., 335 Mo. 1010, 74 S.W.2d 805 (1934); Hunter v.

Karchmer, 285 S.W.2d 918 (Mo. App. 1955); Bellington v.

Clevenger, 228 S.W.2d 817 (Mo. App. 1950). In a federal

circuit court opinion, for example, Justice Washingtor

noted that: “[ijn trials of actions of this nature, it is

of infinite consequence to mark with precision, the Jine to

which the law will justify the defendant in going, and

will punish him if he goes beyond it.” Munns v. De

Nemours, 17 Fed. Cas. 993, 995 (C.C.D. Pa. 1811) (No.

9,926). The Virginia Supreme Court recently espoused

this same attitude when it held that such actions “have

been circumscribed by limitations more stringent than

those applied to most other tort actions.” Bain v. Phillips,

228 S.E.2d 576, 581 (Va. 1976). Numerous commentators

also have expressed this sentiment, including Lord Holt

more than a hundred years ago, Martin Newell at the

turn of the century, and Prosser and Keeton during our

own era. See N. Newell, Newell on Malicious Prosecution

21 (1892); W. Prosser, & W. Keeton, Prosser & Keeton on

the Law of Torts 870-71, 882 (1984). See also Stewart v.

Sonneborn; 98 U.S. 187 (1978); Alexander v. Petty, 35

Del.Ch. 5, [6] 108 A.2d 575, 577 (1954); Miller v. Penn-

sylvania R. Co., 371 Pa. 308, 89 A.2d 809, 810 (1952);

Penton v. Canning, 57 Wyo. 390, 118 P.2d 1002, 1004-05

(1941); 52 Am. Jur.2d Malicious Prosecution § 81, at

187-89; 54 C.J.S. Malicious Prosecution § 3, at 954. We

believe that this public policy coupled with current crime

rates mandates that we reexamine the element of malice

in a malicious prosecution as it is defined for the jury in

our present MAI 16.01.

A person suing on a theory of malicious prosecution

must plead and prove six elements: (1) the commence-

ment of a prosecution against the plaintiff; (2) the in-

stigation by the defendant; (3) the termination of the

proceeding in favor of the plaintiff; (4) the want of

probable cause for the prosecution; (5) the defendant’s

conduct was actuated by malice; and (6) the plaintiff

was damaged. S. Greenleaf, II Greenleaf on Evidence

§§ 449-59 (2nd ed. 1844). See also Stafford v. Muster,

582 S.W.2d 670, 675 (Mo. banc 1979). We focus our at-

tention on the fifth and crucial element of malice; and,

because malice also justifies a punitive damage award, we

must address the connection between the type of malice

necessary to establish liability and that which is necessary

to sustain an award of punitive damages.

The word “malice” connotes a culpable mental state,

but the term lacks any uniform definition. In a well-

researched opinion in 1917, the Arizona Supreme Court

observed that “[t]here are different kinds and degrees

of malice as well as the nature of the evidence going to

prove its existence.” Griswold v. Horne, 19 Ariz. 56, 165

P. 318, 323 (1917). Indeed, one eminent scholar [7] com-

mented that the term is so “slippery” that it should be

banished from the law. Ames, “How Far an Act May

Be A Tort Because of the Wrongful Motive of the Actor,”

18 Harv. L. Rev. 411, 422 n.1 (1905). We have retained

the term and, not surprisingly, the different kinds and

degrees of malice have often been confused throughout

the development of the law in Missouri. The result is

that we now utilize a single definition of malice and it

is highly questionable whether it properly describes either

the malice required to sustain a malicious prosecution or

that required to sustain punitive damages in a malicious

prosecution.

In general, the law recognizes three degrees of malice.

First, there is malice in its universal sense as understod

in the popular mind, which means “ill will, spite, personal

hatred, or vindictive motives.” Peasley v. Puget Sound

Tug & Barge Co., 13 Wash.2d 485, 125 P.2d 681, 689 (1942).

Such malicious conduct is founded in ill will, “and is evi-

denced by an attempt to vex, injure, or annoy another.”

Davis v. Hearst, 160 Cal. 143, 116 P. 530, 537 (1911). See

also 54 C.J.S. Malicious Prosecution § 41, at 1004. This

type of malice is commonly referred to as “malice in fact”

or “actual malice.”

A second degree of malice is malice in its legal sense.

The definition of legal malice has a broader meaning than

the popularly understood definition of malice in fact.

Malice in its enlarged legal sense embraces any improper

or wrongful motive—that is, malo animo. See S.S. Kresge

Co. v. Ruby, 348 So.2d 484, 489 (Ala. 1977); Brodie v.

Hawaii Auto Car Deal. Ass’n, 2 Hawaii App. 316, 631 P.2d

600, 605 (1981), rev'd on other grounds, 655 [8] P.2d 863

(Haw. 1982); Owens v. Kroger Co., 430 So.2d 843 (Miss.

1983); Peasley v. Puget Sound Tug & Barge Co., supra, at

689. See generally 54 C.J.S. Malicious Prosecution § 41,

at 1004. Some courts also have included within legal

malice conduct which is so reckless or wantonly and will-

fully in disregard of one’s rights that a trier of fact could

infer from such conduct bad faith or malo animo. See e.g.,

Richter v. Neilson, 11 Cal. App.2d 503, 54 P.2d 54 (1936);

Hugee v. Pennsylvania R. Co., 376 Pa. 286, 101 A.2d 740

(1954); Lewis v. Williams, 618 S.W.2d 299 (Tenn. 1981);

Yelk v. Seefeldt, 35 Wis.2d 271, 151 N.W.2d 4 (1967).

Although he incorrectly termed it “malice in law”, Newell

aptly defined this type of malice as something less than

malice in fact and “simply .. . a general wickedness or

intent on the part of a person; a depraved inclination to

do harm, or to disregard the rights or safety of mankind

generally.” W. Newell supra, at 239.

Third, there is “malice in law.” This degree of malice

is properly defined as a wrongful act done intentionally

without just cause or excuse. See generally 54 C.JS.

Malicious Prosecution § 42, at 1005. The law imputes

malice “to a wrongdoer from the mere intentional doing

of a wrongful act to the injury of another without legal

justification or excuse.” Freezer v. Miller, 163 Va. 180,

176 S.E. 159, 168 (1934). See also Connelly v. White, 122

Iowa 391, 98 N.W. 144, 145 (1904). For example,

[i]f one gives a perfect stranger unaware a blow with

a deadly weapon likely to produce death, he does it

of malice, because he does it intentionally without just

cause or legal excuse. If he maims cattle without

knowing whose they are, if he poisons a well of drink-

ing water without knowing who is likely to drink of it,

he does it of malice, because [9] it is a wrongful act

and done intentionally without any legal justification

or excuse. This is the malice of the law—a malice of

pleading and proof made necessary by definitions of

offenses against the law or the exigencies of the case.

It is established by a conclusive legal presumption,

and proof of malice in fact is not required.

Griswold v. Horne, supra, at 323. An all-too-often unrec-

ognized difference exists between this type of malice in

law and malice in its legal sense. The former rests upon

a legal presumption independent of any proof concerning

a defendant’s mental state, while the latter requires either

direct or indirect proof of a mental state somewhat less

culpable than malice in fact. See generally L. Frumer

& M. Friedman, 4E Personal Injury § 1.02[3] at 31 (1984).

The weight of authority clearly indicates that a ma-

licious prosecuticn action can be supported only by either

actual or legal malice. Malice in law is insufficient. A

plaintiff must establish that the defendant acted either

with ill will toward the plaintiff or from any other im-

AQ”

proper motive. Treatise writers are in general agreement

that, at the very least, an improper or wrong motive is

essential. Justice Holmes, for example, commented upon

the relevancy of a defendant’s moral condition in such

suits:

Such a limitation would stand almost alone in the law

of civil liability. But the nature of the wrong is

peculiar, and, moreover, it is quite cynsistent with

the theory of liability here advanced that it should be

confined in any given instance to actual wrongdoing

in a moral sense.

O. Holmes, The Common Law Tradition 113 (M. Howe ed.

1963). Over one hundred years later, Prosser and Keeton

wrote:

[10] The plaintiff has the burden of proving that the

defendant instituted the proceeding “maliciously.”

This unfortunate word, which has so much vexed the

kindred law of defamation, requires no less in the way

of definition here. It means something more than the

fictitious “malice in law” which has been developed

in defamation cases as a cloak for strict liability. There

must be “malice in fact.” At the same time it does

not necessarily mean that the defendant was inspired

by hatred, spite or ill will; and there is authority that

if his purpose was otherwise a proper one, the ad-

dition of the incidental fact that he felt indignation

or resentment toward the plaintiff will not make him

liable. As in the cases of qualified privilege in defa-

mation, the courts seem to have looked to the primary

purpose behind the defendant’s action. If he is found

to have acted chiefly to give vent to motives of ill

will, “malice” is established.. But it is found also

where his primary purpose was merely something

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other than the social one of bringing an offender to

justice ...

W. Prosser & W. Keeton, supra, at 882-83. Other similar

expressions may be found concerning the required type of

malice.

Ordinarily, in order to constitute malice supporting

an action for malicious prosecution, there must be

malus animus, denoting that the person who instituted

the original proceeding was actuated by wrong motives.

54 C.J.S. Malicious Prosecution § 42, at 1004-05. See also

T. Cooley, A Treatise on the Law of Torts 184 (1879); F.

Pollock, A Treatise on the Law of Torts, 183, 392 (1894);

52 Am. Jur.2d Malicious Prosecution § 46, at 214. These

authorities illustrate that while ill will, hatred or spite

may not be necessary to establish the cause of action, the

plaintiff must prove that the defendant was at least actu-

ated by an improper or wrongful motive.

[11] Decisions from numerous state courts are no less

forceful in asserting that more than malice in law is

needed to establish the elements of a malicious prosecution.

Some courts require actual malice, while other courts hold

that malice in its legal sense is sufficient. The Arizona

Supreme Court has held that “in this sort of action it is

absolutely essential to its existence that malice in fact as

distinguished from malice in law be present.” Griswold

v. Horne, supra, at 323. The North Dakota Supreme Court

has held that legal malice is sufficient to support the

action, and then it defined legal malice as “any unjusti-

fiable motive.” Kolka v. Jones, 6 N.D. 461, 71 N.W. 558,

562 (1897). The highest court of Virginia has also held

that “‘[t]he malice which is an essential element of an

action for a malicious prosecution is actual malice, or malice

in fact, and its existence must be proven as any other fact.”

All

Freezer v. Miller, supra, at 168. The court further defined

actual malice as “malus animus, i.e., a wrong motive or

purpose.” Id. at 169. With the exception of all but a few

state courts,’ including Missouri, the overwhelming ma-

jority of decisions require ill will or some improper or

wrongful motive. See e.g., National Security Fire & Casu-

alty Co. v. Bowen, 447 So.2d 133, 140 (Ala. 1983); Griswold

v. Horne, supra; Albertson v. Raboff, 46 Cal.2d 375, 295

P.2d 405, 410 (1956); Suchey v. Stiles, [12] 155 Colo. 363,

394 P.2d 739, 741 (1964); Smith v. Globe Ford, Inc., 39

Conn. Supp. 27, 467 A.2d 1262, 1266 (1983); Stidham v.

Diamond State Brewery, Inc., 41 Del. 330, 21 A.2d 283, 285

(1941); Ammerman v. Newman, 384 A.2d 637, 640-41 (D.C.

1978); Erp v. Carroll, 438 So.2d 31, 40 n.3 (Fla. App. 1983) ;

Iowa Mutual Ins. Co. v. Gulf Heating & Refrig. Co., 184

So.2d 705, 706 (Fla. App. 1966); Brodie v. Hawaii Auto

Ret. Gas Deal. Ass’n, supra; Berlin v. Nathan, 64 Ill.App.3d

940, 381 N.E.2d 1367, 1372 (1978); Carbaugh v. Peat, 40

Ill.App.2d 37, 189 N.E.2d 14, 19 (1963); Satz v. Koplow,

397 N.E.2d 1082, 1083 (Ind. App. 1979); Foltz v. Bock, 89

Kan. 381, 131 P. 587 (1913); Illinois Central R. Co. v.

Anderson, 206 Ky. 600, 268 S.W. 311, 312 (1925); O’Connor

v. Hammond Police Dept., 439 So.2d 558, 561 (La. App.

1983); Coleman v. Kroger Co., 371 So.2d 1186, 1189 (La.

App. 1979); Glover v. Fleming, 36 Md.App. 381, 373 A.2d

981, 983 (1977); Sottile v. DeNike, 20 Mich. App. 468, 174

N.¥".2d 148 (1969); Owens v. Kroger Co., supra, at 847;

Harvill v. Tabor, 240 Miss. 750, 128 So.2d 863, 864-65

1. See Meraz v. Valencia, 28 N.M. 174, 210 P. 225 (1922);

_ Brown v. Guaranty Estates Corp, 239 N.C. 595, 80 S.E.2d 645,

651 (1954); Eaves v. Broad River Elec. Cooperative, Inc., 277

S.C. 475, 289 S.E.2d 414, 416 (1982). An examination of these

opinions and their adoption of a malice in law standard indicates

a similar problem presently before this Court. Cf. Stanford v.

A. F. Messick Grocery Co., 143 N.C. 449, 55 S.E. 815 (1906);

Margolis v. Telech, 239 S.C. 232, 122 S.E.2d 417 (1961).

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(1961); Miller v. Watkins, 653 P.2d 126, 131 (Mont. 1982);

Hackler v. Miller, 79 Neb. 209, 114 N.W. 274 (1907); Martin

v. City of Albany, 42 N.Y.2d 13, 364 N.E.2d 1304, 396

N.Y.S.2d 612 (1977); Rogers v. Barbera, 170 Ohio St. 241,

164 N.E.2d 162, 165 (1960); Fleet v. May Dept. Stores,

Inc., 262 Or. 592, 500 P.2d 1054, 1059 (1972); Hugee v.

Pennsylvania R. Co., supra; Curley v. Automobile Finance

Co., 343 Pa. 280, 23 A.2d 48 (1941); Nagy v. McBurney,

120 R.I. 925, 392 A.2d 365, 367-68 (1978); Huntley v. Har-

berts, 264 N.W.2d 497 (S.D. 1978); Stringer v. Cross, 564

S.W.2d 121 (Tex. Civ. App. 1978); Creelman v. Svenning, 1

[13] Wash.App. 402, 461 P.2d 557 (1969); Consumers

Filling Station Co. v. Durante, 79 Wyo. 237, 333 P.2d 691,

699-700 (1958); Meyer v. Ewald, 66 Wis.2d 168, 224 N.W.2d

419, 422 (1974). See also Ga. Code § 51-7-2 (1982).

Some of these courts hold that legal malice also en-

compasses conduct which is “wrongful and willfully done,

with a consciousness that is not according to law or duty.”

Wiggin v. Coffin, 29 Fed. Cas. 1157, 1159 (C.C.D. Me. 1836)

(No. 17,634). See also Lunsford v. Dietrich, 9 So. 308, 310

(Ala. 1891); Nyer v. Carter, 367 A.2d 1375, 1378-79 (Me.

1977); Kolka v. Jones, supra, at 562; Margolis v. Telech,

supra, Care must be taken to distinguish this type of

malice from negligence:

Malice is distinguishable from mere negligence in

that it arises from absence of purpose. The character-

istic of negligence is inadvertence or an absence of an

intent to injure. This does not imply that the act was

done involuntarily or unconsciously, but merely that

the person doing it was not conscious that the act

constituted a want of reasonable care. If so conscious

the act becomes malicious. The books agree that the

prosecution need not have been prompted by malevo-

lence or any corrupt design, nor necessarily involve

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spite or hatred toward the person accused. It is enough

if it be the result of any improper or sinister motive

and in disregard of the rights of other... , or if done

willfully and purposely ... But to constitute malice

there must have been (1) a motive or purpose, and

(2) it must have been an improper one.

Jenkins v. Gilligan, 108 N.W. 237, 238 (Iowa 1906) (cita-

| tions omitted). In short, the conduct must be such that a

jury could infer and find an improper motive. Amother

court opined that “[wJhile it is a fact that a willful and

wanton disregard for the [14] fact may be the basis for

| malice, such wanton and willful conduct must be of such

| a nature and character as to evince a hostile or vindicative

| motive.” Yelk v. Seefeldt, supra, at 8. (Emphasis added).

The defendant’s act is deemed improper because the de-

fendant is consciously doing an act which he knows society

regards as reprehensible. These opinions, therefore, dem-

onstrate that the requisite legal malice is established when

the defendant willfully institutes a criminal proceeding

while -onscious that such an action is wrong or unlawful.

The defendant must either proceed with an improper or

wrongful motive or consciously act with such wanton dis-

regard for the rights of others that a jury may, but need

not, infer from such conduct in improper motive.

Contrary to the weight of authority, Missouri has

retained a malice in law standard for the definition of

malice in malicious prosecution actions. “The element of

malice in malicious prosecution is defined as the inten-

tional doing of a wrongful act without legal justification.

It may be inferred from the absence of probable cause

and does not necessarily involve hatred or ill will.”

Parthenopoulos v. Maddox, 629 S.W.2d 563, 571 (Mo. App.

1981). See also Muza v. Cash Bargain Lumber Co., 586

S.W.2d 403, 406 (Mo. App. 1979); Palermo v. Cottom, 525

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S.W.2d 758, 765 (Mo. App. 1975). - This is essentially the

definition found in MAT 16.01:

The term [“malice”] [“malicious”] [‘maliciously” ]

as used in this [these] instruction[s] does not mean

hatred, spite or ill will, as commonly understood, but

means the doing of a wrongful act intentionally with-

out just cause or excuse.

[15] Although Missouri has dubbed and titled this defini-

tion “legal malice,” it is in fact what we have described

as “malice in law.” The instruction does not require the

jury to find that the defendant acted with an improper

purpose. Indeed, this is nothing more than the common

generic definition of an intentional tort:

[i]t is a general rule of the common law that a

cause of action arises whenever one person, by an

act not in the exercise of a lawful right, causes loss or

does damage to another with an intent, either actual

or constructive, to produce such harm, witout just

or lawful excuse or justifiable cause or occasion.

74 Am. Jur.2d, Torts § 18, at 635. Prosser and Keeton

explain that this definition was intended for use in such

cases where a “cloak for strict liability” was intended.

W. Prosser & W. Keeton, supra, at 882. The two examples

are defamation suits and suits for false arrest or imprison-

ment.? The Minnesota Supreme Court has appropriately

noted that “[t]he malice which is the essential element

of malicious prosecution is not, like the malice essential

2. See generally Harper, “Malicious Prosecution, False Im-

prisonment and Defamation,” 15 Tex. L. Rev. 157, 164-65 (1937);

54 C.J.S. Malicious Prosecution § 41, at 1004. See e.g., Griswold

v. Horne, supra, David v. Hearst, supra; Hudson v. Garner, 22

Mo. 423, 433 (1856); Helming v. Adams, 509 S.W.2d 159 (Mo.

‘App. 1974); McGill v. Walnut Realty Co., 148 S.W.2d 131 (Mo.

App. 1941); Ullrich v. New York Press Co., 23 Misc. Rep. 169,

50 N.Y.S. Supp. 788 (1898).

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in libel, slander, and false imprisonment, a mere fiction

of the law; it is a state of mind to be proven as a fact.”

Hanowitz, v. Great Northern Ry. Co., 122 Minn. 241, 142

N.W. 196, 197 (1913) (emphasis added). Not surprisingly,

therefore, the few states, including Missouri, adopting this

malice in law standard for malicious prosecution actions

have been singled out for [16] criticism. See 54 C.J.S.

Malicious Prosecution, § 42, at 1005; Freezer v. Miller,

supra, at 168, n.8.

The malice in law standard in Missouri can be traced

to two early decisions Goetz v. Ambs, 27 Mo. 28 (1858)

and Hill v. Palm, 38 Mo. 13 (1866). Goetz involved award-

ing punitive damages in an assault case, and the Court

equated malice with an intentional tort. Goetz v. Ambs,

supra, at 33. In Hill, the Court without reasoning or

discussion approved an instruction in a malicious prosecu-

tion action which was a combination of malice in fact

and malice in law, thereby permitting recovery to be based

on the lesser, malice in law. The instruction was as fol-

: lows:

' There are two kinds of malice; malice in fact, and |

| malice in law. The former, in common acceptation,

means ill-will against a person; the latter, a wrongful

act done intentionally. If, therefore, the jury believes

from the evidence that the defendant caused plaintiff

to be arrested for larceny . . ., and that the defendant

was moved thereto by ill-will against the plaintiff,

or that the prosecution was wrongfully instituted by

the defendant ... the jury must find for the plaintiff.

Hill v. Palm, supra, at 15. The Hill instruction was fol-

lowed in Sharpe v. Johnston, 59 Mo. 557 (1875). In Sharpe,

the jury was instructed that “[m]Jalice means a wrongful

act done intentionally without legal justification or ex-

cuse.” Id. at 571.

;

i ciciaiaiiciaseaiaaiisiliisaias

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The Court in these early cases erroneously assumed

that the definition of malice could be culled from defama-

tion cases where malice served as a cloak for strict liability.

The only citation supporting the instruction in Goetz is

to a federal circuit court opinion. Goetz v. Ambs, supra,

at 33. In that federal decision, however, Justice Story

was interpreting a federal criminal [17] statute, and he

relied heavily upon the language in Bromage v. Prosser,

4 Barn & C. 247 (1825). United States v. Taylor, 28

F. Cas. 31 (D. Mass. 1837) (No. 16,442). Bromage involved

a defamation action and Judge Bayley held that malice

was implied from the publication of false words in a case

not involving privileged communications. Bromage, v.

Prosser, supra, at 256. “[I]f the matter is slanderous,

malice is implied, it is sufficient to prove publication;

the motive of the party publishing are never gone into.”

Id. at 256. According to Bayley, this type of malice was

defined as “a wrongful act, done intentionally, without

just cause or excuse.” Id. at 255. In Sharpe, the prevail-

ing party supported the malice instruction by a citation

to Buckley v. Knapp, 48 Mo. 158 (1871). Sharpe v. John-

ston, supra, at 561. Buckley, however, involved the same

kind of action as Bromage and the Court affixed malice

where there was a mere publication of false words. Knapp,

supra, at 161. See also Barber v. St. Louis Post Dispatch,

3 Mo. App. 377, 386 (1877).

The majority of Missouri cases involving malicious

prosscution merely recite this malice in law standard

without describing the state of mind sufficient to sustain

the cause of action. See e.g., Burris v. North, 640 Mo. 426

(1877); Callahan v. Caffarata, 39 Mo. 136, 143-44 (1866);

Brant v. Higgins, 10 Mo. 451 (1847). The opinions gen-

erally acknowledge that malice is an essential element of

the tort. See e.g., Frampton v. Bieber, 204 S.W. 728 (Mo.

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1918); Sharp v. Johnston, supra, at 575; Casperson v.

Sproule, 39 Mo. 39, 42-43 (1866); Laylor v. Byrne, 51 Mo.

App. [18] 578, 580 (1892); McGarry v. Missouri Pacific

Ry. Co., 36 Mo. App. 340, 346 (1889). They most frequently

find malice in the lack of probable cause rather than in the

actor’s state of mind.* See e.g., Hoene v. Associated Dry

Goods Corp., 487 S.W.2d 479 (Mo. 1972); Keenoy v. Sears

Roebuck & Co., 642 S.W.2d 665 (Mo. App. 1982); Hupp v.

North Hill Lincoln-Mercury, Inc., 610 S.W.2d 349 [19] (Mo.

App. 1980); Muza v. Cash Bargain Lumber Co., supra;

3. The rationale behind these decisions is that the facts

which establish the lack of probable cause may also allow the

jury to draw the inference that the defendant had a culpable

mental state. See e.g., Lambert v. Sears, Roebuck & Co., 280

Or. 123, 570 P.2d 357, 363 (1977). Unfortunately, a certain

amount of confusion surrounds the statement that “malice may

be inferred from the lack of probable cause,” as Justice Linde

of the Oregon Supreme Court explains:

I have no doubt that the same evidence may prove that a

defendant lacked probable cause to prosecute the plaintiff

and also acted with malice. But it is a different proposi-

tion that the jury may infer malice “from the lack of

probable cause,’ when the latter conclusion may arise from

non-malicious causes such as negligence. While the second

phrasing [that the lack of probable cause may be sufficient

evidence of malice] may have originated merely as elliptical

shorthand for the first, its effect is to invite the jury to find

“malice” whenever they find that the defendant initiated

the prosecution of plaintiff without probable cause.

Id. at 365 (Linde, J., concurring). See also Wills v. Noyes, 29

Mass. (12 Pick) 324, 326 (1832). A number of Missouri cases

suggest that malice may be inferred from a lack of probable

cause; these opinions, however, do not accurately reflect the law

that malice may be inferred from the facts which establish the

lack of probable cause:

[MJalice is not an inference of law from the want of prob-

able 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 in-

ferred from the want of probable cause.

Sharpe v. Johnston, supra, at 575-76. See also Christian v. Hanna,

supra, at 43. We, therefore, discourage courts from using the

“elliptical” phrase that malice may be inferred from a want of

probable cause.

Al8

Palermo v. Cottom, supra; Boquist v. Montgomery Ward &

Co., 516 S.W.2d 769 (Mo. App. 1974); Witt v. Kroger Co.,

392 S.W.2d 15 (Mo. App. 1965).

Some opinions, however, suggest that the state of

mind embodied in a legal malice standard is required to

establish liability for malicious prosecution. A number

of cases suggest implicitly that the plaintiff must establish

that the defendant was actuated by either ill will or any

improper motive. See e.g., Randol v. Kline’s Inc., 322 Mo.

746, 18 S.W.2d 500, 507 (1929); Peck v. Chouteau, 91 Mo.

138, 3 S.W. 577, 580 (1887); Stocking v. Howard, 73 Mo.

25, 27 (1880); Pritchett v. Northwestern Mutual Life Ins.

Co., 228 Mo. App. 661, 73 S.W.2d 815, 819 (1934); Van

Nort v. Van Nort, 16 S.W.2d 642, 645 (Mo. App. 1929);

Christian v. Hanna, 58 Mo. App. 37, 43 (1894); Trauer-

man v. Lippincott, 39 Mo. App. 478, 486-87 (1890); Staley

v. Turner, 21 Mo. App. 244, 251 (1886); Meysenberg v.

Engelke, 18 Mo. App. 346, 349-50 (1885). OGne opinion

suggests that malice is established when the defendant

acts recklessly, unreasonably and im gross disregard for

one’s rights when instituting a proceeding. Foster v. Chi-

cago, B. & Q. R. Co., 321 Mo. 1202, 14 S.W.2d 561, 570

(1928).

Our courts, after having the case submitted on MAI

16.01 or one of its predecessors, in many instances have

justified the finding of the jury by saying that the lan-

guage in MAI 16.01 reflects the commonly expressed defi-

nition of willfulness. In a case interpreting the phrase

“the intentional doing of a wrongful act without just cause

or excuse,” the Court explained that the [20] term “in-

tentionally done” refers to the fact that the “defendant

knew that it was wrong, knew that he had no just cause

or excuse for so doing, and hence did it willfully and

wantonly and in reckless disregard of the rights of the

Al19

other party.” McNamara v. St. Louis Transit Co., 182 Mo.

676, 81 S.W. 880, 882 (1904). This same interpretation

of the language of MAI 16.01 exists in numerous other

cases. See e.g., Jones v. Phillips Petroleum Co., 186 S.W.

2d 868, 876 (Mo. App. 1945); Pritchett v. Northwestern

Mut. Life Ins. Co., supra, at 819; Christian v. Hanna, supra,

at 43; Trauerman v. Lippincott, supra, at 486. The con-

cept of willfulness cannot properly be read into the lan-

guage in MAI 16.01 post trial because nothing in the

instruction requires that the defendant act willfully. See

generally Freezer v. Miller, supra, at 168-69. Decisions con-

struing the language in MAT 16.01 to include a willfulness

component seem all the more questionable in light of other

cases suggesting that the legal malice standard purportedly

reflected in the instruction does not require that the de-

| fendant acted willfully or wantonly. See e.g., Brown v.

\ Sloan’s Moving & Storage Co., 296 S.W.2d 20, 26 (Mo.

1956).

The case at bar leaves us no choice but to clarify the

element of malice in malicious prosecution actions. In

so doing we resolve the misunderstanding that has plagued

this state’s law for many years. We can no longer in good

| conscience sanction the use of MAI 16.01. The instruction

reflects a definition of malice in law and does not indicate

to the jury that the defendant had to have acted with

the requisite culpable mental state. In the past the jury

| has been told that malice exists when the defendant does

[21] a “wrongful act intentionally without just cause.”

The “wrongful act” “without just cause” is committed

| when the defendant acts without probable cause, an en-

. tirely separate element of the tort. All that has remained

for the jury to determine is that the defendant act “in-

tentionally.” To a jury this suggests, as counsel for respon-

dent argued in closing argument, that the initiation of the

ee ee

A20

prosecution was “not an accident.” This fails to recognize

the distinction between intention and malice. Intention

refers to the defendant’s intent to commit the act which

causes the harm. See e.g., Cover v. Phillips Pipe Line Co.,

454 S.W.2d 507, 512-13 (Mo. 1970). The type of intent

embraced in the concept of malice is quite different:

The tort of malicious prosecution is an intended wrong,

not only in the sense that the defendant, by his de-

liberate and voluntary act, invaded the plaintiff's

interest but in the sense that he intended the wrongful

result. This means that he must have committed the

acts complained of primarily for the purpose of harming

the plaintiff.

F. Harper & F. James, Jr., I The Law of Torts § 4, at 320

(1956). There must be intent to cause the harm and not

merely to commit the act which causes the harm. The

effect of MAI 16.01 is to place a premium on the absence

of probable cause thereby relegating malice to a mere legal

fiction, a legal inference or presumption. This is contrary

to the weight of authority and we believe was never in-

tended by your prior decisional law.

MAI 16.01 is further misleading because it states that

malice “does not mean hatred, spite or ill will.” Hatred,

spite or ill will is necessary to establish malice in fact.

Even courts [22] rejecting a malice in fact standard,

however, hold that hatred, spite or ill will does not neces-

sarily have to be proven. See e.g., Lampert v. Judge &

Dolph Drug Co., supra, at 1098; Palermo v. Cottom, supra,

at 765 Beatty v. Puritan Cosmetic Co., supra, at 819;

Christian v. Hanna, supra, at 43. See also Iowa Mutual

Ins. Co. v. Gulf Heating & Refrig. Co., 184 So.2d 705, 706

(Fla. App. 1966); Stanford v. A. F. Messick Grocery Co.,

supra, at 817; Huntley v. Harberts, supra, at 501. By in-

A21

forming the jury that malice does not mean hatred, spite

or ill will instead of informing the jury that malice does

not necessarily mean hatred, spite or ill will, MAI 16.01

goes one step further in suggesting to a jury that mere

intent to do an act that the law subsequently classifies

as wrongful is sufficient.

In Haswell v. Liberty Mutual Insurance Co., 557 S.W.2d

628 (Mo. bane 1977), this Court discussed adopting the

Restatement definition of malice for malicious prosecution

of civil proceedings. The passing years, the ever increasing

problem of crime, and the need for effectively carrying out

the public policy of urging citizens to aid in the prosecu-

tion of crime now mandates that we reach a different result

with respect to malicious prosecution actions arising from

a criminal proceeding. The Restatement of Torts (Second)

§ 668 (1965) provides: ‘To subject a person to liability

for malicious prosecution, the proceedings must have been

initiated primarily for a purpose other than that of bringing

an offender to justice.” This definition, while not re-

quiring proof of malice in fact, will require proof of legal

[23] malice and bring Missouri back into step with the

majority of jurisdictions.

Having held that MAI 16.01 improperly defines the

element of malice in malicious prosecution actions, MAI

23.07 (1981) should be modified so as to incorporate the

Restatement definition We believe that respondent

should be afforded a new trial to determine whether or

not appellant acted with the degree of malice necessary

to sustain the cause of action. Zimmerman v. Associates

Discount Corp., 444 S.W.2d 396 (Mo. banc 1969).

4. The second paragraph of MAI 23.07 should be amended

as follows: “Second, in so doing defendant acted primarily for a

purpose other than that of bringing an offender to justice and

acted without reasonable grounds, and.” The term “reasonable

grounds” still requires definition. MAI 16.05 (1981).

A22

Ill

_ Two reasons suggest that MAI 16.01 can no longer

be used to instruct the jury on punitive damages in a

malicious prosecution action." First, MAI 16.01 is inade-

quate to instruct the jury on even the required mental

state for liability. A higher degree of malice should be

required to justify punitive damages. Second, the weight

of authority indicates that actual malice or something akin

to actual malice is generally necessary to justify a puni-

tive damage av ard in malicious prosecution cases.

[24] Under current Missouri law, the malice in law

standard for liability in a malicious prosecution also is

used to satisfy the type of conduct necessary for punitive

damages. Ruth v. St. Louis Transit Co., 98 Mo. App.

1, 71 S.W. 1055, 1060 (1903), and Carp v. Queen Ins.

Co. 203 Mo. 295, 101 S.W. 78, 97 (1907), suggested that

actual malice was needed to support a punitive damage

award in a malicious prosecution action. In Foster v.

Chicago B. & Q. R. Co., supra, at 572, however, the Court

held that the type of malice necessary for liability was

also sufficient to justify punitive damages. See Dye v.

Loewer, 94 S.W.2d 948, 953 (Mo. App. 1936). The Court

apparently based its decision upon a Missouri case involv-

ing punitive damages in another form of action and upon

a United States Supreme Court case. It should be noted

that the United States Supreme Court case relied upon

in Foster required some willful conduct or reckless indiffer-

ence to the rights of others, and “[t]he tort is aggravated

5. The jury was instructed under MAI 10.01 that if ap-

pellant’s conduct was “willful, wanton, or malicious,” then it

could also assess punitive damages against appellant. The Notes

on Use to MAI 10.01 indicate that “malicious” must be defined

for the jury, and that definition is found in MAI 16.01. Conse-

quently, because the definition of malice described by MAI 16.01

is insufficient to justify awarding punitive damages, we again

focus our attention on 16.01.

A23

by the evil motive, and on this rests the rule of exemplary

damages.” Milwaukee & S.P. R. Co. v. Arms, 91 USS.

489, 493 (1876). The misapplied rule announced in Foster

found its way into the mainstream of our law without

a full and accurate consideration of the issue.

The standard expressed by MAI 16.01 and approved

in Foster conflicts with the prevailing view that punitive

damages should not be awarded in a malicious prosecution

action unless the defendant’s mental state reflects some-

thing akin to actual malice. Some courts, of necessity,

demand the presence of actual malice because of their

requirement that actual malice is necessary to establish

liability. Commentators generally observe that to [25]

justify punitive damages there must be “personal ill will

or oppressive conduct in the prosecution.” W. Prosser

& W. Keeton, supra, at 888. Another source suggests

that there must be actual malice “‘or where the proceedings

complained of were commenced under circumstances of

oppression, wantonness, or a reckless disregard of plain-

tiff's rights.” 54 C.J.S. Malicious Prosecution § 114, at

1106.

Many courts have held that actual malice is “required

to support an award of punitive damages in an action

for malicious prosecution.” Annot., 94 A.L.R.3d 791, 795

(1979). One observer notes that “[m]any states require

proof of malice more in the lay sense of personal hatred,

spite or ill will.” G. Douthwaite, Jury Instructions on

Damages in Tort Actions 437 (1981). Courts either require

a higher degree of culpability before awarding punitive

damages than they do for liability or they require more

stringent proof of malice for punitive damages than for

liability. See e.g., Adams v. Whitefield, 290 So.2d 49 (Fla.

1974); Jones v. Gwynne, 306 S.#.2d 574 (N.C. App. 1983),

cert. denied, Jones v. McArnold’ Corp., 310 S.E.2d 292

A24

(1984); Stanford v. A. F. Messick Grocery Co., supra, at

817-18; Rogers v. Barbera, supra, at 164-65; Lee v. South-

land Corp, 219 Va. 23, 244 S.E.2d 756, 759 (1978); Giant

of V ginia, Inc. v. Pigg, 207 Va. 679, 152 S.E.2d 271 (1967).

In First National Bank of St. Mary’s v. Todd, 283 Md.

251, 389 A.2d 371 (1978), the Maryland court acknowledged

that the majority rule is that actual malice was necessary

to justify awarding punitive damages. Id. at 373-74. See

also Rizza v. Gill, 24 Conn.Sup. 256, 189 A.2d 794 (1963);

Ross v. Kerr, 30 [26] Idaho 492, 167 P. 654, 656 (1917):

Mardelli v. Stamberg, 44 N.Y.2d 500, 406 N.Y.S.2d 443,

377 N.E.2d 975 (1978); Sparrow v. Vermont Savings Bank,

95 Vt. 29, 112 A. 205, 207 (1921); McFarland v. Skaggs

Co., Inc., 678 P.2d 298, 302-04 (Utah 1984). It should

also be noted that a number of jurisdictions indirectly

require actual malice in malicious prosecutions through

their general policy of requiring actual malice for all puni-

tive damage awards.®

MAT 16.01 does not express adequately the degree

of culpability required for punitive damages in malicious

prosecution cases. The public policy surrounding mali-

cious prosecutions dictates that we follow the majority rule

that actual malice is required for punitive damages in

a malicious prosecution action. We believe that the defini-

tion of malice set forth in the treatise co-authored by

our brother Blackmar articulates the correct standard

and suggests the form of a proper instruction: “An act

or a failure to act is ‘maliciously’ done, if prompted or

6. See generally A.B.A., Model Jury Instructions For Busi-

ness Tort Litigation 34 (1980); J. D. Ghiardi & L. J. Kircher,

Punitive Damages: Law and Practice § 5.04, p. 18 (1984); W.

Prosser & W. Keeton, supra, at 10-11; K. Redden, Punitive Dam-

ages (1980); L. A. Stein, Damages and Recovery: Personal In-

jury and Death Action 369 (1972); 25 C.J.S. Damages § 123, at

1141-43. See also Restatement of Torts (Second) § 908.

A25

accompanied by ill will, or spite, or grudge, either toward

the injured person individually, or toward all persons in

one or more groups or categories of which the injured

person is a member.” E. Devitt & C. Blackmar, 3 Federal

Practice and Instructions § 85.11, at 121 (3rd ed. 1977).

To the extent that either our prior cases or MAI

16.01 conflicts with the degrees of malice we have found

necessary to [27] support malicious prosecution and puni-

tive damages therein, they can no longer be followed.

The need to encourage citizen assistance and participation

in the enforcement of our criminal laws compels this long

overdue reexamination of the law of malicious prosecution.

The cause is reversed and remanded for retrial con-

sistent with this opinion.

WARREN D. WELLIVER, Judge

Higgins, Billings and Donnelly, JJ.,

concur; Blackmar, J. concurs in result

in separate opinion filed; Rendlen,

C.J., dissents in separate opinion

filed; Gunn, J. dissents in separate

opinion filed.

A26

(Filed December 18, 1984)

SUPREME COURT OF MISSOURI

EN BANC

ROBERT A. SANDERS, )

‘Respondent, )

vs. ) No. 65529

DANIEL INTERNATIONAL CORPORA- )

TION, )

)

Appellant.

OPINION CONCURRING IN RESULT

I agree that the judgment should be reversed and

the case remanded for new trial.

Judge Welliver soundly traces the history of malicious

prosecution actions in Missouri, and convincingly demon-

strates that the instruction approved as MAI 16.01, proceed-

ing from the law applied in defamation cases “does not

require the jury to find that the defendant acted with

an improper purpose.” I agree that more rigorous standard

should be applied to malicious prosecution cases.

The extensive quotations in the principal opinion sim-

ply show that other courts have struggled with the prob-

lems inherent in suits for malicious prosecution and related

actions, but give very little guidance to counsel as to

the kind of instruction which will be approved. The sev-

eral expressions are not wholly [2] consistent. Inasmuch

as this Court freely prescribes instructions to be used

in civil cases, I believe that we should do so in this one.

The Court, with the help of the MAI Committee, may

of course make future revisions and amendments as may

be necessary or desirable.

A27

If Judge Gunn is correct in his conclusion that plaintiff

failed to make a submissible case under the presently

prevailing law there would be no need to go into detail

about appropriate instructions for future cases. I am in-

clined to believe, however, that the jury could have found

that the defendant’s agents led the prosecutor to believe

that they could produce evidence to support charges against

each of the seven suspects, with reference to their individ-

ual tool boxes when the agents knew that the tools had

been commingled before any inventory was taken. Prose-

cutor, now judge, Hamilton testified as follows:

CROSS-EXAMINATION

Q Okay. What information was it that they had

given you for probable cause to believe that Robert

Sanders and the other 6 crew members had committed

the crime of attempted theft?

A Well, they indicated that the tools from the

tool box that had been broken into were found in

the gang number 52 gang box and also in the individual

boxes in that gang box. And these were the 7 individ-

uals whose names were given to me as being on crew

number 52.

+ a *

REDIRECT EXAMINATION

Q@ Mr. Hamilton, if there had been stolen tools

in each of the individual tool boxes, you could have

proceeded with the trial [3] and prosecuted them

without confessions; isn’t that true?

*- * *

A28

A If there had been stolen tools that were iden-

tifiable in each of the individual tool boxes, I think

that’s correct. .

Q You could have proceeded and then you

wouldn’t have needed the confessions?

A That’s right.

The portions of the witness’s examination quoted by

Judge Gunn do not destroy the effect of this testimony.

There would remain, under the new standard proposed

in the principal opinion, the question of the intent of

the defendant’s agents. I agree with the statement in

the principal opinion that “conduct which is so reckless

or wantonly and willfully in disregard of one’s rights that

a trier of fact could infer from such conduct bad faith

or malo animo” is within the concept of legal malice.

The plaintiff should have the opportunity for a new trial

under the revised standard. There is also the possibility

of additional evidence and of argument about the per-

missible inferences from all the evidence directed to the

revised standard.

II.

Although I do not disagree with the statement in

Restatement of Torts (Second) § 668 (1965), that “To

subject a person to liability for malicious prosecution, the

proceedings must have been initiated primarily for a pur-

pose other than that of bringing an offender to justice,”

this statement hardly serves as a definition [4] of malice

and I do not believe that it should be the subject of

a verdict-directing instruction or an essential definition.

The instructions, rather, should speak in affirmative terms

as to what the plaintiff must show. Section 668 speaks

of the conduct which will not give rise to liability but

A29

is silent as to the showing which the plaintiff must make.

I believe that it would serve the purpose of revised Mis-

souri law as enunciated in the principal opinion if MAI

23.07 were left intact and if an instruction in the following

terms were substituted for the required definition of “ma-

liciously,” now found in MAT 16.01, in malicious prosecution

cases:

The term “maliciously” as used in this (these)

instruction(s) means acting intentionally with an im-

proper or wrongful motive, or consciously acting with

wanton disregard for the rights of others.

Just as with MAI 16.01, the definition could be built into

MAI 23.07 or made the subject of a separate instruction.

If this were done then juries would be appropriately

instructed as to the mental state required of the defendant.

No longer would we have a situation in which the defense

of malice “does not indicate to the jury that the defendant

had to have acted with the requisite culpable mental state.”

There may be speculation regarding the appropriateness

of the continued use of MAI 16.01 in other actions in

which malice is in issue. It would be inappropriate for

us to extend our present holding to cases other than ma-

licious prosecution cases, but counsel might consider a

conservative approach in the definition of malice, in [5]

possibly anticipating further reexamination of the prevail-

ing standard.

I also agree that there is a need to modify the present

MAI 10.01 as to the allowance of punitive damages in

malicious prosecution cases. Although it might have been

thought that a verdict for the plaintiff in a malicious

prosecution case necessarily connoted entitlement to puni-

tive damages, in the discretion of the jury, there is clear

precedent for a contrary holding in Rustici v. Weidemeyer,

A30

673 S.W.2d 762 (Mo. banc 1984), which held that a defen-

dant might recover actual damages in a claim for false

arrest without being entitled to submit punitive damages.

The instruction recommended in the principal opinion’

is unduly restrictive, and does not give plaintiffs the alter-

natives, found in the model from which it was taken

of demonstrating that the defendant’s act was “wantonly”

or “oppressively” done. I would hesitate to hold that

a plaintiff must necessariiy demonstrate “personal hatred,

spite or ill will.” The focus rather should be on a purpose

of causing harm. I would commend for malicious prosecu-

tion cases an instruction in lieu of the present MAT 16.01,

in the following language:

If you find the issues in favor of plaintiff, and

if you believe the conduct of defendant as submitted

in Instruction Number ........ (here insert number of

plaintiff’s verdict directing instruction) was willful

or wanton and was wrongfully done for the purpose

of causing injury, then in addition to any damages

to which you find plaintiff entitled under Instruction

Number ......... (here insert [6] number of plaintiff's

damage instruction), you may award plaintiff an addi-

tional amount as punitive damages in such sum as

you believe will serve to punish defendant and to

deter him and others from like conduct.

This plaintiff, under the evidence, should have the

opportunity to submit the issue of punitive damages under

the revised instruction. I cannot say that a jury could

not find a wrongfui intent to cause injury.

For the reasons stated, I concur in the result reached

by the principal opinion.

1. 3 Devitt and Blackmar, Federal Jury Practice and In-

structions, 3d Ed., § 85.11.

A31

Inasmuch as these views do not commend the support

of a majority of the Court, counsel will have to proceed

as best they can in the framing of instructions, with no

assurance my suggestions will be ultimately approved.

This task is difficult when counsel are not required to

make specific objections to the substance of instructions,

and so lawyers will have to get along as best they can in

the position in which the majority opinion leaves them.

CHARLES B. BLACKMAR, Judge

A32

(Filed December 18, 1984)

SUPREME COURT OF MISSOURI

EN BANC

ROBERT A. SANDERS, )

Respondent, )

Vv. ) No. 65529

DANIEL INTERNATIONAL CORPORA- )

TION, )

)

Appellant.

DISSENTING OPINION

I respectfuliy dissent and would reverse the judgment

of the trial court for the reasons set forth in the dissenting

opinion of Judge Gunn. However, I feel it important

to provide guidance for the Bench and Bar in this and

similar cases and accordingly if retrial is necessary I sub-

scribe to the jury instruction forms suggested in the sepa-

rate opinion of Judge Blackmar concurring in result.

ALBERT L. RENDLEN, CHIEF JUSTICE

A33

(Filed December 18, 1984)

SUPREME COURT OF MISSOURI

EN BANC

ROBERT A. SANDERS,

Plaintiff-Respondent-

Cross-Appellant,

vs.

DANIEL INTERNATIONAL CORPORA-

TION,

No. 65529

Defendant-Appellant-

Cross-Respondent.

wee eee Se”

DISSENTING OPINION

On the facts of the case, I would reverse the judgment.

As the majority opinion recites, the second element

of a cause for malicious prosecution is the instigation of

proceedings by the defendant. To impose liability, the

institution of prosecution must be in the form of some

affirmative action by way of advice, encouragement, pres-

sure, or otherwise. Palermo v. Cottom, 525 S.W.2d 1758,

763 (Mo.App. 1975). There is no liability for merely re-

porting the truth, Rustici v. Weidemeyer, 673 S.W.2d 762,

767 (Mo. banc 1984), or merely giving information which

leads to a prosecution. Palermo v. Cottom, supra. That

is what happened here.

An examination of the record in the light most favor-

able to the plaintiff leads to the same conclusion as ex-

pressed in Judge Flanigan’s concurring opinion when the

case was before the Southern [2] District: “There is

nothing in the record to indicate that either Warblow

A34

or Heers bore an actual hatred or malice towards Sanders

and it is doubtful that even a most charitable view of

the evidence would support a finding that either of them

intentionally lied to the prosecutor.” There is no evidence

that Warblow or Heers acted for any purpose other than

that of bringing to justice those responsible for the taking

of missing tools. Defendant must necessarily rely on his

witness, Prosecuting Attorney Hamilton. Hamilton indi-

cated that he misinterpreted or misunderstood some of

the information given him by defendant. The crucial mis-

understanding concerned the ability of defendant to pro-

vide the prosecutor with an inventory of the specific stolen

tools, indicating from which individual tool box each tool

was recovered. Hamilton subsequently learned that this

was not possible for two reasons. First, a number of

the tools could not be identified with any precision. Sec-

ond, defendant had placed all the toois from each crew

member’s tool box into a single large pile, thereby foreclos-

ing the possibility of an inventory from each worker’s

tool box. The prosecutor testified that he was not inten-

tionally misled concerning these facts:

Q. Based upon what you were told then and what

you later learned through the various aspects of

the investigation you conducted, were the facts

as given you on December 20 by Mr. Warblow

and Mr. Heers substantially correct?

A. The facts were substantially correct.

Q. Okay. Now, you don’t feel then, Mr. Hamilton,

that you were misled in any way by the facts

thet were given you?

A. No, I don’t think I was intentionally misled. I

think I misinterpreted some things.

[3] Q.

A35

Well, any misinterpretation was on your part and

not on the basis of what they told you?

All I can say is what they told me. And my

interpretation was something different than we

later found the facts to be.

Well, but that—any misinterpretation of that kind

would have been misinterpretation on your part

and not on what they told you;—

That’s correct.

He testified further as follows:

Were you able to do—did they indicate they

wanted something done, if possible?

Well, yes, they were concerned about the matter.

What else, then, did you tell them?

I indicated that based on what they had told me—

the information that they had given me, that

charges for attempted stealing—that we did have

probable cause for that.

Okay. Now, at any time in this, Mr. Hamilton,

was there any urging or pressing or anything of

that kind from the Daniel’s people for you to

file these charges?

No. There was concern, obviously, but it was

my decision to file the charges.

You understood they wanted something done?

Right.

But did you understand that they wanted it done

within the framework of the law?

A36

A. That’s my understanding.

Q. And they didn’t ask you to overreach or go ahead

with something that you didn’t feel should be

done?

A. No, it’s a good thing that they didn’t.

[4] Q. Okay. Why do you say that?

pe wouldn't have done it under those circumstances

at all.

The strongest inference possible from ali the witnesses

is that defendant’s employees may have unintentionally

contributed to a misunderstanding on the part of the prose-

cutor concerning the facts surrounding the theft. Such

conduct is insufficient to make a case for malicious prose-

cution.

The following statement from La Font v. Richardson,

119 S.W.2d 25 (Mo.App. 1938), is appropriate: “when it

is shown that the prosecuting witnesses consult the prose-

cuting attorney in good faith, and communicate to him

all the ascertainable facts, and acting on his advice institute

the criminal proceedings . . . they should be exonerated.”

Id. at 29. This language pertains to the instant case.

Here, it was the prosecutor who suggested that Heers

and Warblow sign the blank complaint. The defendants

were not the parties who initially suggested the institution

of proceedings. They had only sought a search warrant

to aid in the solution of the crimes of theft. Their sug-

gestion was rejected by the prosecutor. Thus, there is

no issue of probable cause confronting this Court. See

Moad wv. Pioneer Finance Co., 496 S.W.2d 794 (Mo. 1973)

in which Judge Higgins gives full explanation to the essen-

tial element of probable cause in malicious prosecution

and finds, inter alia, that mere dismissal of a complaint

‘ sii ceti

A37

does not create “any inference of want of probable cause”

nor ‘rebut the prima facie case of probable cause. Id. at

799.

[5] I cannot translate the prosecutor’s suggestion of

prosecution and subsequent dismissal of charges into suf-

ficient evidence to support an action of malicious prosecu-

tion.

The sum and substance of the facts of this case lead

to the plain and single conclusion that there is no evi-

dentiary support for a malicious prosecution action.

Additionally, in this case, the definition of “malice”

makes no difference. There simply was no malice here

by any definition.

GEORGE F. GUNN, JR., Judge

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.