# Opposition Brief — Lucas v. Daniel International Corp. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_0096%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1985 - **Citation:** 471 U.S. 1137 ## Text ce Supreme oan TS No. 84-1631 ol ey N AS; CLERK 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 AA CP PT airs nscsssetnsnecstccccsenncecinacs III CP I hii eiinuhlocpecucaee 1 FT sich ts cisinstantnspahitcen hd daanid cia ae 2 CONSTITUTIONAL AND STATUTORY PROVI- TEE «UE WOT esticonsich Satperietcseceseasisiceecnzeucsictsiinatsblasii 2 STAT Mmeee se CO Tei CAB iii cc ceseeecen 4 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 yl BS | | SE S| 5} ate eee 2 . 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 IV Court Rules Pe a, I is ss anesnosesnnacienecaanie 3 ne a sscasoeaeianumalanemanean 3 ae ee On ES a 4,13 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 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. 4 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. (c) Plain Error may be Considered. Plain errors 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. 5 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 8 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. 6 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 7 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, 8 430 (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. 9 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. 10 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. 11 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. 12 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 13 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: (c) Plain Error may be Considered. Plain errors 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. 14 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 Al 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. A2 I 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 A3 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 A4 warrant was issued. On February 15, 1979, Hamilton dismissed the charges against Sanders. II 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 AS 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 A6 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 A7 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 A8 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 Al0 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). Al2 (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 Al13 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 Al4 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). Al5 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 Al6 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. Al7 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 i 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 L. 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 4 673 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. A. A. 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: Q. A. © © 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 i --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_0096%3A2. Public record. Not legal advice.