November 13, 1950.
Where a separate trial of one count was ordered, the judgment on such count was a final judgment for the purpose of an appeal. Plaintiff was indicted for the theft of property from the plant of St. Joseph Lead Company, and sued the company and two plant guards for malicious prosecution. A verdict in favor of defendants was properly directed at the close of plaintiff's evidence. It was not shown that the company gave the plant guards authority to prosecute. Plaintiff failed to establish want of probable cause and that the indictment had been brought about by the guards. Striking part of plaintiff's original petition was waived. Excluded evidence was either not covered by an offer of proof or was not prejudicial.
1. APPEAL AND ERROR: Judgments: Separate Trial on One Count: Final Judgment. Where a separate trial of one count is ordered the judgment entered upon such count is a final judgment under Rule 3.29 for the purposes of an appeal.
2. MALICIOUS PROSECUTION: Elements Stated. The six constitutive elements of a malicious prosecution action are stated.
3. MALICIOUS PROSECUTION: Burden of Proof. All the elements of a charge of malicious prosecution must be strictly and clearly proven.
4. MALICIOUS PROSECUTION: No Submissible Case Against Defendant Smith. The appearance of defendant Smith at the jail and courthouse when plaintiff was questioned did not make a submissible case of malicious prosecution against said defendant.
5. MALICIOUS PROSECUTION: Master and Servant: Agency: Plant Guard Without Authority to Prosecute: No Submissible Case Against Employer. A plant guard would not have authority to cause the prosecution of a person believed to have previously stolen property from the plant, so there was no submissible case against the St. Joseph Lead Company.
6. MALICIOUS PROSECUTION: Prosecution Instigated by Prosecuting Attorney. The testimony of plaintiff's witness, the prosecuting attorney, shows that the complaint was filed on his own responsibility and not on the complaint of any person.
7. MALICIOUS PROSECUTION: Indictment as Probable Cause: Burden of Proof. The return of an indictment by a grand jury is prima facie evidence of probable cause and plaintiff has the burden of rebutting this presumption.
8. MALICIOUS PROSECUTION: Probable Cause: Dismissal of Indictment. The dismissal of the indictment without a trial upon the merits does not raise an inference of want of probable cause.
9. MALICIOUS PROSECUTION: Procuring False Testimony of Other Witnesses Not Shown. There was no evidence to show that defendant Ball caused other witnesses to give false testimony before the grand jury.
10. PLEADING: Motion to Strike: Waiver of Error. If there was any error in sustaining a motion to strike part of plaintiff's original petition, it was waived by filing an amended petition and proceeding to trial.
11. EVIDENCE: Rejected Testimony: No Offer of Proof. There being no offer of proof on excluded testimony, reversible error is not established.
12. MALICIOUS PROSECUTION: Evidence: Exclusion of Testimony Not Prejudicial. There was no prejudice in refusing to permit testimony of the prosecuting attorney that defendant Ball testified before the grand jury.
Appeal from St. Francois Circuit Court; Hon. Norwin D. Houser, Judge.
J.O. Swink for appellant.
(1) The trial court erred in compelling plaintiff to redraft his petition into two counts and requiring a separate trial on count one of plaintiff's petition (malicious prosecution) when count two (false arrest) was an action by the same plaintiff against the same defendants, and arose from similar circumstances. Civil Code of Missouri, sec. 847.37; Carr, Missouri Civil Procedure, sec. 166. (2) The trial court erred in sustaining objection to plaintiff's testimony, on redirect examination, as to conversation between him and defendant Smith that occurred at time of first arrest, as testified to on cross-examination as this court has frequently held that after a witness has been cross-examined the party calling him may afford the witness an opportunity to make full explanation of matters made subject to cross-examination. City of St. Louis v. Worthington, 52 S.W.2d 1003; Glassco Electric Co. v. Union Electric Co., 61 S.W.2d 955; Johnson v. Minnikan, 200 S.W.2d 334. (3) The trial court erred in sustaining an objection to plaintiff's testimony as to a conversation of plaintiff with defendant Ball about the indictment of plaintiff. Ex parte Holliway, 199 S.W. 412, 272 Mo. 108. (4) The trial court erred in sustaining an objection to prosecuting attorney testifying whether or not, defendant Ball appeared and testified before grand jury, and denying plaintiff's offer of proof that defendant Ball did appear and did testify, as it has long been the law of this state that although an indictment is prima facie evidence of probable cause, it is not conclusive and may be rebutted by proof that the indictment was obtained by false or fraudulent testimony, concealment of facts from grand jury or other improper means. 26 Cyc. 40; Sharpe v. Johnson, 76 Mo. 660; Wilkinson v. McGee, 265 Mo. 576; Dawes v. Starrett, 82 S.W.2d 43. (5) The trial court erred in finding that the prosecuting attorney commenced the prosecution by filing of the affidavit for the warrant. It is sufficient to show that plaintiff was the proximate and efficient cause of maliciously putting the law in motion. 38 C.J. 395: Higgins v. Knickmeyer-Fleer etc., 74 S.W.2d 805. (6) The trial court erred in finding that by showing an indictment, plaintiff created a barrier which could not be overcome. As stated in paragraph (4), all cases in point show that defendants and their witnesses did appear and did testify before the grand jury in each case, including Kvasnicka v. Montgomery Ward Co., 166 S.W.2d 503. (7) Trial court, on passing on demurrer, must consider plaintiff's evidence to be true and in so doing must draw every inference in its favor that the law and the evidence will warrant. Houser v. Beiber, 271 Mo. 326; Randal v. Kline's Inc., 18 S.W.2d 500. (8) The trial court erred in directing a verdict for the defendants as plaintiff had met all six requirements of a malicious prosecuting suit as set out in Higgins v. Knickmeyer-Fleer etc., 74 S.W.2d 805 and subsequent cases.
W. Oliver Rasch, John S. Marsalek and Moser, Marsalek, Carpenter, Cleary Carter for respondents.
(1) Aside from every other question in the case, the plaintiff failed to show any right of recovery upon Count I against defendants St. Joseph Lead Company and L.B. Smith, because there was no evidence whatever showing or tending to show that defendant Smith caused the filing of the complaint by the prosecuting attorney against the plaintiff, or the issuance of the grand jury indictment, and no evidence that the acts of defendant Ball, shown in evidence, were done within the scope or course of the latter's employment by the St. Joseph Lead Company. Milton v. Mo. Pac. R. Co., 193 Mo. 46, 91 S.W. 949; Farber v. Mo. Pac. R. Co., 116 Mo. 81, 22 S.W. 631; Sacks v. St. Louis S.F.R. Co., 192 S.W. 418; Oganaso v. Mellow, 356 Mo. 228, 201 S.W.2d 365. (2) Defendant St. Joseph Lead Company was not bound by any of the statements of defendant Ball appearing in the record. Statements by an employee or agent of a corporation are admissible against the corporation only when made in the course of, relating to and connected with the ordinary business of the corporation then being conducted by the employee or agent within the scope of his employment. Shelton v. Wolf Cheese Co., 338 Mo. 1129, 93 S.W.2d 947; Carson v. St. Joseph Stockyards Co., 167 Mo. App. 443; Rice v. St. Louis, 165 Mo. 636, 65 S.W.2d 1002. (3) There was no evidence showing or tending to show that the defendant Ball caused the filing of the complaint against plaintiff by the prosecuting attorney, or the issuance of the indictment by the grand jury. Bellington v. Clevenger, 228 S.W.2d 817; Richardson v. Empire Trust Co., 230 Mo. App. 580, 94 S.W.2d 966; Clark v. Thompson, 160 Mo. 461, 61 S.W.2d 194. (4) The indictment of plaintiff by the grand jury constituted proof that probable cause existed for the prosecution against him, and imposed upon plaintiff the burden of showing that the indictment was procured by defendants by testimony known to be false, by the intentional concealment of pertinent facts, or by other improper or fraudulent conduct. The record is bare of any evidence to support this indispensable element of plaintiff's case. Sharpe v. Johnson, 76 Mo. 660: Wilkinson v. McGee, 265 Mo. 574, 178 S.W. 471; Kvasnicka v. Montgomery Ward Co., 350 Mo. 360, 166 S.W.2d 503. (5) No inference of want of probable cause arises from the fact that the prosecuting attorney voluntarily dismissed the complaint in the magistrate court and the prosecution in the circuit court without trial upon the merits. Such dismissal is no evidence of want of probable cause. Higgins v. Knickmeyer-Fleer R. I. Co., 335 Mo. 1010, 74 S.W.2d 805; Boeger v. Langenberg, 97 Mo. 390, 11 S.W. 223. (6) Nor is this necessary element supplied by plaintiff's testimony that he was not guilty of the crime charged against him. Bonzo v. Kroger Grocery Baking Co., 344 Mo. 127. 125 S.W.2d 75. (7) The charge of malicious prosecution is no favorite of the law, and the burden was upon the plaintiff to prove the elements of his case strictly and clearly. Huffman v. Meriwether, 201 S.W.2d 469; Bellington v. Clevenger, supra. (8) Count I of the amended petition was fatally defective, and stated no cause of action against defendants, in that plaintiff pleaded that he had been indicted by the grand jury, thereby admitting that probable cause for the prosecution existed, and set forth no facts to negative the admission. Wilkinson v. McGee, supra. (9) Defendants did not, during cross-examination of plaintiff, ask him anything about his January arrest in St. Louis or about anything said on that occasion, and neither the fact of the arrest nor any conversation on that subject was brought out on cross-examination. Plaintiff's said arrest was first shown on redirect examination by his own counsel. The above circumstances did not make testimony by plaintiff relating what was said on the occasion of his arrest competent evidence. Levels v. St. Louis Hannibal R. Co., 196 Mo. 606, 94 S.W. 275; State v. Schenk, 238 Mo. 429, 142 S.W. 263; State v. McDonough, 232 Mo. 219, 134 S.W. 345. (10) The trial court has a wide discretion regarding the extent to which parties may inquire into subject collateral to the issue which discretion will not be reviewed except in cases of obvious abuse. Orr v. Shell Oil Co., 352 Mo. 288, 177 S.W.2d 608; State ex rel. State Highway Commission v. Bengal, 124 S.W.2d 687; Stillwell v. Patton, 108 Mo. 352, 18 S.W. 1075. (11) Any answer made by plaintiff would have included incompetent, self-serving declarations, and in no event could the answer have been admitted as evidence against defendants St. Joseph Lead Company and Ball. McFarland v. Bishop, 282 Mo. 534, 222 S.W. 143; Weller v. Weaver, 231 Mo. App. 400, 100 S.W.2d 594. (12) The plaintiff made no offer of proof, and the record contains no information whatever as to what was said by either plaintiff or Smith in said conversation. Therefore, the matter is not before the court for review. Woodward v. Stowell, 222 S.W. 815; Williams v. Williams, 259 Mo. 242, 168 S.W. 616; Forrester v. Sullivan, 231 Mo. 345, 132 S.W. 722; City of St. Louis v. Pope, 121 S.W.2d 861; Byam v. K.C. Pub. Serv. Co., 328 Mo. 813, 41 S.W.2d 945. (13) Plaintiff made no offer of proof, and the record provides no information whatever as to what was said either by plaintiff or by Ball in the course of the conversation referred to. For the reason stated above, the ruling complained of cannot be reviewed. Authorities, Point (12), supra. (14) The question called for hearsay, self-serving declarations on the part of plaintiff, and in no event could any answer made by plaintiff have constituted evidence against defendants St. Joseph Lead Company and Smith. Authorities under Point (11), supra. (15) The court did not err in sustaining defendants' objection to the question, addressed by plaintiff's counsel to M. Tomlinson, the prosecuting attorney, inquiring whether or not defendant Ball did or did not testify before the grand jury. For reasons of public policy, the law casts a veil of secrecy over the proceedings of the grand jury. Direct evidence disclosing said proceedings is permitted only in the instances specified in the statutes. Sections 3905, 3906, 3922, 3924, 3935, 12910, R.S. 1939; Conway v. Quinn, 168 S.W.2d 445; State v. Johnson, 115 Mo. 480, 22 S.W. 463; State v. McDonald, 342 Mo. 998, 119 S.W.2d 286; Ex parte Holloway, 272 Mo. 108, 199 S.W. 412; State v. Thomas, 99 Mo. 235, 12 S.W. 643; State v. Ferguson, 162 Mo. 668, 63 S.W. 101. (16) Actions for malicious prosecution present no exception to the rule. Beam v. Link, 27 Mo. 261; Kennedy v. Holladay, 105 Mo. 24, 16 S.W. 688; Tindle v. Nichols, 20 Mo. 326. (17) The plaintiff had the right to prove his case by inferences and presumptions based upon the admissible facts, without having any witness testify directly who appeared before the grand jury and what testimony the witnesses gave there. Plaintiff followed this course when, without objection, he introduced the subpoena requiring Mesey and Ball to appear before the grand jury, and the sheriff's return of service thereon. Dawes v. Starrett, 336 Mo. 897, 82 S.W.2d 43; Buesching v. Laclede Gas Light Co., 73 Mo. 219. (18) In the above manner the plaintiff proved, by inference and presumption, that Ball appeared before the grand jury. The direct testimony of the prosecuting attorney to that effect, if admitted, would have been cumulative only, and would have made no change in the case, so far as concerns the motions for a directed verdict. The alleged error is immaterial. Civil Code, sec. 847.123, Mo. R.S.A. (19) The court's ruling on the pleadings, and requirement of a separate trial on Count I, were not erroneous, and any objection thereto was waived by plaintiff. No order that plaintiff redraft his petition in two counts, as mentioned in plaintiff's brief, was entered by the court. (20) Such an order, if made, would not have been prejudicial to plaintiff, and would be immaterial on this appeal. Civil Code, sec. 847.123, Mo. R.S.A. (21) By filing his amended petition plaintiff waived any question regarding the ruling of the court on the original petition. Williams v. Chicago, S.F. C.R. Co., 112 Mo. 463, 20 S.W. 637; Gale v. Foss, 47 Mo. 276; Berthold v. O'Hara, 121 Mo. 88, 25 S.W. 847. (22) The court's ruling, requiring separate trials of the issues under Counts I and II, was discretionary, and in view of the fact that defendant Ball was not a party under Count II, no abuse of discretion appears. Civil Code, sec. 847.16, Mo. R.S.A.; State ex rel. Algiere v. Russell, 359 Mo. 800, 223 S.W.2d 481; Biggs v. Crosswhite, 225 S.W.2d 514. (23) The order last mentioned is not complained of in plaintiff's motion for a new trial, and therefore is not before this court for review. Supreme Court Rule 3.23; Shanks v. St. Joseph Finance Loan Co., 163 S.W.2d 1017; Rogers v. Potect, 355 Mo. 986, 199 S.W.2d 378.
Thomas Z. Harper, plaintiff, instituted this action against the St. Joseph Lead Company, a corporation, Byron Ball, and L.B. Smith, defendants. Plaintiff's petition was in two counts. The first count sought $22.500 actual and $22.500 punitive damages for alleged malicious prosecution. The second count sought $1,000 actual and $4,000 punitive damages for an alleged false imprisonment. The motion of defendant Ball was sustained for a separate trial of the issues under count one on the assigned ground that plaintiff asserted no claim against him under count two. The separate motion of the several defendants for a directed verdict at the close of plaintiff's evidence upon the trial on count one of the petition were sustained and, under the direction of the court, a verdict in favor of the defendants on count one was returned. Plaintiff prosecutes this appeal from the judgment on count one, contending, principally, error was committed in directing the verdict for defendants and in excluding certain testimony on behalf of plaintiff.
Count two of plaintiff's petition remains undisposed of. The rulings have been that in like circumstances a judgment must dispose of all the parties and all the issues in the cause to be final and appealable, the right of appeal being statutory. However, our Civil Code of 1943 permits of the separate trial of claims, counterclaims, separate issues et cetera (Laws 1943, pp. 353-397, §§ 97(b), 16(b), 17(a), 79, 103; Mo. R.S.A., 1939, §§ 847.97(b), 847.16(b), 847.17(a), 847.79, 847.103), and requires: "The judgment  shall be entered as of the day of the verdict" (Id., § 116). Proceeding under § 10(b) of said Code, supra, the supreme court promulgated Rule 3.29 which provides in part, that the judgment entered upon the verdict returned on the separate trial of any claim et cetera constitutes a final judgment for the purposes of an appeal within § 126 of Laws 1943, supra; and to this extent removed the confusion arising under the new Code and modified our former practice respecting the finality of a judgment for the purposes of an appeal. Consult Carr, Missouri Civil Practice, § 860. Plaintiff's appeal is thereunder.
State ex rel. v. Terte, 357 Mo. 229, 207 S.W.2d 487, 489[1, 2]; Severs v. Williamson (Mo. App.), 198 S.W.2d 368, 370, citing cases; Courtney v. Blackwell, 150 Mo. 245, 272(a), 51 S.W. 668, 675(a); Nokes v. Nokes (Mo. App.). 8 S.W.2d 879, 880; Liepman v. Rothschild. 216 Mo. App. 251, 262 S.W. 685, 686; Laws 1943, p. 390, § 126, Mo. R.S.A., 1939, § 847.126, supplanting repealed § 1184, R.S. 1939; and see § 1243, R.S. 1939, Mo. R.S.A., not repealed by the new Code, and repealed § 1102, R.S. 1939, Mo. R.S.A. (Laws 1943, p. 353). Consult Houts, Missouri Pleading and Practice, §§ 563, 325.
We need not detail plaintiff's petition, as amended. Plaintiff contends his evidence made a submissible issue on each of the six constitutive elements of a malicious prosecution action, to wit: "(1) The commencement or prosecution of the proceeding against him or her; (2) its legal causation by the present defendant; (3) its termination in favor of the present plaintiff; (4) the absence of probable cause for such proceeding; (5) the presence of malice therein; and (6) damage to plaintiff by reason thereof." Higgins v. Knickmeyer-Fleer R. Inv. Co., 335 Mo. 1010, 1025(2), 74 S.W.2d 805, 812; Kvasnicka v. Montgomery Ward Co., 350 Mo. 360, 166 S.W.2d 503, 505.
Defendants contend, among other things, that plaintiff's evidence, the only evidence adduced, did not carry the burden of a submissible case on the legal causation of the prosecution by defendants and also on the absence of probable cause for such proceeding.
On February, 4, 1948, B.C. Tomlinson, prosecuting attorney of St. Francois county, Missouri, executed and filed his complaint charging that plaintiff and Walter N. Grant did, in September, 1947, feloniously steal 1500 pounds of babbitt metal of the value of $1,275, the personal property of St. Joseph Lead Company. Warrants were issued for the arrest of plaintiff and Grant, and Sheriff Heck of St. Francois county requested the police of the City of St. Louis to apprehend them.
About 9:00 p.m. on February 4, 1948, plaintiff was informed the police were looking for him and his friend Grant. He went to Grant's house and they "called" the St. Louis police, who came for them. On February 5, Sheriff Heck executed the warrants and took plaintiff and Grant to Farmington.
Plaintiff testified that on February 6, State Trooper Tucker and defendants Ball and Smith were at the jail, and thereafter he and Grant were taken to the courthouse and, in the presence of his attorney, plaintiff was questioned by Tucker and Smith about a truck and informed he was charged with stealing 1500 pounds of babbitt metal, worth about $1,200. While at the Sheriff's office, someone measured plaintiff's feet; he thinks it was Ball.
Plaintiff was returned to the jail and in less than an hour was taken out of the main cell block by one Crickett and Ball, Ball having the keys on that occasion, and put in a cell at the back of the jail. Plaintiff did not know if Crickett were an officer.
Plaintiff testified that Ball saw him about every day and would say "It looks bad for you today"; "We have got another link of evidence in the chain to convict you"; "All your attorney wants is your money"; "If you will plead guilty, I will get you off with a two year parole. You can go in the Army and forget about it, and if you don't I'm going to prosecute you to the fullest extent"; that he knew enough to hang plaintiff; that while talking about his detective work, and in answer to Grant's: "Hell, you can't detect anything"; Ball said: "I got you two guys in jail, didn't I?"; that he, plaintiff, had never stolen anything from the St. Joseph Lead Company, and the only occasion he had for being in St. Francois county was to pass through; and that he told Ball he had nothing to do with the stolen metal.
On February 14, 1948, plaintiff was taken out of jail to attend the preliminary hearing. Among the witnesses endorsed on the complaint were Forrest Chappell and William Gilbert, residents of St. Louis. Subpoenaes issued for their attendance at the preliminary hearing were returned "not found." The prosecuting attorney applied for a continuance of the preliminary hearing; making oath that said Chappell and  Gilbert would testify that plaintiff and Grant entered upon the property of the St. Joseph Lead Company and stole 1500 pounds of babbitt metal; "that said facts cannot be proved by other witnesses"; that the State of Missouri could not proceed with the preliminary hearing "without the testimony of these two witnesses who will testify to material facts surrounding the commission of this crime that the State of Missouri is unable to prove such facts by any other witness" et cetera. The preliminary hearing was continued to February 18, 1948.
On February 17, 1948, an indictment was returned into court charging plaintiff and Grant with the same offense charged in the complaint of the prosecuting attorney. The names of the witnesses endorsed on the indictment were: Trooper C.W. Tucker, Byron Ball, A.G. White, Charles Hillman, R.L. Ketcherside, Forrest Chappell, William Gilbert, Harold L. Mesey, and F.O. Buxton. With the exception of the names of Mesey and Buxton, which were added to the indictment, the names are the same as appeared on the original complaint.
On February 18, 1948, the prosecuting attorney dismissed his complaint before the magistrate.
Plaintiff was released on bond after nineteen days in jail.
On March 5, 1948, Walter N. Grant's application for a separate trial was sustained.
The case against plaintiff was continued several times.
Among plaintiff's exhibits was an application by the prosecuting attorney for a writ of habeas corpus ad testificandum to secure the attendance of witness Mesey at plaintiff's trial set for December 6, 1948, Mesey being then confined in the Algoa Reformatory, alleging that Harper had admitted to Mesey he had committed the theft with which he was charged, and that Mesey would so testify.
On February 4, 1949, the prosecuting attorney, on his sole responsibility, nolle prosequied the charge against plaintiff.
Plaintiff testified that, on an occasion when Grant, his nephew Forrest Chappell, and he were in a tavern, Chappell introduced him to Harold Mesey; that Chappell and Mesey told him at that time they were going to Herculaneum to try to steal some lead from the St. Joseph Lead Company; that his brother Russell and Grant told him they also had gone to see if they could steal some lead from the St. Joseph Lead Company; that he visited Chappell and Mesey several times while they were in jail at Hillsboro on the charge of stealing lead from said corporation.
Plaintiff's witness Roberts testified that while confined in the jail, he cut plaintiff's hair at the suggestion of Ball, and an hour or so afterwards he had a conversation with Ball in which Ball said: "We haven't got anything on them." and that Ball had a listening device by the back door over the two back cells. Plaintiff testified the haircutting occurred after he was indicted.
Other facts will be developed in connection with the discussion of specific points.
"The charge of malicious prosecution is no favorite of the law and when made the elements necessary to sustain it must be strictly and clearly proven." Higgins v. Knickmeyer-Fleer R. Inv. Co., 335 Mo. 1010, 74 S.W.2d 805, 814. This burden rests upon the plaintiff. The Higgins case, supra; Knost v. Terminal Rd. Ass'n. (Mo. App.), 222 S.W.2d 593, 595. See Kvasnicka v. Montgomery Ward Co., 350 Mo. 360, 166 S.W.2d 503, 509[3-6]; Bellington v. Clevenger (Mo. App.). 228 S.W.2d 817, 818[1: 2].
The only event defendant Smith participated in was his appearance at the jail and at the courthouse when plaintiff was questioned in the presence of plaintiff's attorney on February 6, 1948; and plaintiff did not recall whether it was Trooper Tucker or Smith who questioned him. This of course, is wholly insufficient to make a submissible case against Smith.
The evidence did not make a submissible case against the St. Joseph Lead Company. The evidence involving this defendant was limited to a stipulation that during the months of January and February, 1948, Smith was "chief of plant  guards" and Ball was a "plant guard" of said Company.
An employer is liable for a malicious prosecution instigated by an employee acting within the scope of his employment or if the prosecution was previously authorized or subsequently ratified. There is no evidence that the Company authorized or subsequently ratified the prosecution of plaintiff.
Neither Ball nor Smith was the Company's general agent. They were plant guards, employed to guard and protect the Company's property. We may not imply an authority upon a plant guard to procure the institution of a prosecution by a prosecuting attorney or a grand jury. Evidence is required to thus extend his authority, and it may not rest in judicial notice. See Farber v. Missouri Pac. Ry. Co., 116 Mo. 81, 93, 94, 22 S.W. 631, 633(2); Milton v. Missouri Pac. Ry. Co., 193 Mo. 46, 91 S.W. 949; Sacks v. St. Louis S.F. Rd. Co. (Mo.). 192 S.W. 418.
The larceny, committed in September, 1947, was a thing of the past when the acts complained of by plaintiff occurred in February, 1948. Ball and Smith were not then attempting to protect the stolen metal against theft or its recapture from the thief. Under the instant record, the actions of all concerned could have no effect other than the punishment of the offender, and the presumption is that those participating acted in response to a duty as a citizen to punish the offender for the wrong to the State. The Sacks case, supra, quotes and applies Allen v. London S.W.R. Co., L.R. 6 Q.R. 65, 68, stating: "There is a marked distinction between an act done for the purpose of protecting the property by preventing a felony or of recovering it back, and an act done for the purpose of punishing the offender for that which has already been done. There is no implied authority in a person having the custody of property to take such steps as he thinks fit to punish a person who he supposes has done something with reference to the property which he has not done. The act of punishing the offender is not anything done with reference to the property; it is done merely for the purpose of vindicating justice." Consult also 34 Am. Jur. 758, § 89; 54 C.J.S. 1031, § 64; 1 Restatement, Agency, §§ 253, 246; Nancy v. Gall, 187 Md. 656, 50 A.2d 120, 126 [9, 10], 51 A.2d 535; Annotations, 88 Am. St. Rep. 793; 77 A.L.R. 929d; 35 A.L.R. 654d.
B.C. Tomlinson, the prosecuting attorney, was plaintiff's witness and testified that Trooper Tucker and defendant Ball came to his office and narrated facts they had gleaned from an investigation they made and "I signed an affidavit charging Mr. Harper and Mr. Grant with grand larceny"; that both Tucker and Ball, if he remembered correctly, gave him information; that he made up his own mind to file the complaint and filed it on his own responsibility and not on the request of any person: "Q. Did you ask Mr. Ball if he would make an affidavit of those charges? A. I did not. Q. Did he ask you to prepare it, Byron Ball? A. He did not." It is not established what Tucker said or what Ball said or that either wrongfully stated or concealed any fact. Neither requested that a complaint be filed. There was no evidence contradicting plaintiff's witness Tomlinson and plaintiff is bound by his testimony. Klotsch v. P.F. Collier Son Corp., 349 Mo. 40, 159 S.W.2d 589, 594; Hoock v. S.S. Kresge Co. (Mo.), 230 S.W.2d 758, 760, sustaining (Mo. App.), 222 S.W.2d 568, 570[2-4]. If any mistake was made in filing the complaint of February 4 it was the mistake of the prosecuting attorney under plaintiff's evidence and not that of Ball, who, so far as disclosed, did not misstate or conceal any fact. Bellington v. Clevenger (Mo. App.), 228 S.W.2d 817, 821[4, 5]; Richardson v. Empire Trs. Co., 230 Mo. App. 580, 94 S.W.2d 966, 971; Madden v. Covington (Mo. App.), 86 S.W.2d 190, 193; Clark v. Thompson, 160 Mo. 461, 465(I), 61 S.W. 194(1); Hoock v. S.S. Kresge Co., supra; 54 C.J.S. 969, § 17; 34 Am. Jur. 714, §§ 23, 72.
The return of an indictment by a grand jury is prima facie evidence of probable cause in an action for malicious prosecution;  and to prevail plaintiff must rebut, briefly stated, the presumption by proof that the indictment was obtained by false or fraudulent testimony or by other improper means, or that defendant procured the indictment believing plaintiff to be innocent. Kvasnicka v. Montgomery Ward Co., 350 Mo. 360, 166 S.W.2d 503, 505, 515; Wilkinson v. McGhee, 265 Mo. 574, 178 S.W. 471, 474; Sharpe v. Johnston, 76 Mo. 660, 670.
No inference of want of probable cause arises from the dismissal of the complaint in the magistrate court or the indictment in the circuit court without a trial upon the merits. Higgins v. Knickmeyer-Fleer R. Inv. Co., 355 Mo. 1010, 1026, 74 S.W.2d 805, 813; Madden v. Covington (Mo. App.), 86 S.W.2d 190, 192; Knost v. Terminal Rd. Ass'n (Mo. App.), 222 S.W.2d 593, 596, 598. We have considered the facts that plaintiff secured an acquittal and testifies he is innocent do not rebut the prima facie case of probable cause he establishes by proof of his indictment and make a submissible issue on want of probable cause. Kvasnicka v. Montgomery Ward Co., 350 Mo. 360, 166 S.W.2d 503, 504, 508, 514[11, 15]. See Stubbs v. Mulholland, 168 Mo. 47, 89(7), 67 S.W. 650, 663(7).
Plaintiff was indicted on February 17, 1948. The prosecuting attorney testified he talked to Mesey on that date and to most all of the witnesses. Plaintiff, in his brief, mentions that evidence connecting him with the crime would come from Chappell, Gilbert, and Mesey. It was stated in the application for a continuance that Chappell and Gilbert would testify plaintiff had stolen the metal, and in the petition for habeas corpus ad testificandum that Mesey would testify plaintiff admitted the theft to him. Chappell, Gilbert, and Mesey were also charged with the theft of metal from the corporate defendant. Plaintiff also admits that subpoenaes were issued for Chappell and Gilbert to testify before the grand jury. Mesey was also subpoenaed. All three names, together with six others, including Ball, were endorsed as witnesses on the indictment. Thus, so far as disclosed by the record, plaintiff's implication in the crime could be established only by the testimony of Mesey, Chappell, and Gilbert. There is no evidence indicating what the other six witnesses, including Ball, could or did testify to before the grand jury. The permissible inference is that the indictment of plaintiff, distinguished from proof that the babbitt metal had been stolen by someone, a fact not controverted of record, was brought about by the testimony of Mesey, Chappell, and Gilbert.
Roberts' testimony that Ball said after the return of the indictment, they had nothing on plaintiff, and plaintiff's statements that he had never been in St. Francois county; that he did not commit the theft; that he did not tell Mesey he was guilty, and other statements attributed to Ball by plaintiff do not establish that Ball gave false testimony before or fraudulently concealed facts from the grand jury. We do not agree with plaintiff's statement that it is to be inferred from the remarks attributed to Ball by plaintiff that Ball made similar threats and promises to Mesey, Chappell, and Gilbert while they were in jail to induce them to give false testimony before the grand jury. If Mesey, Chappell, and Gilbert gave false testimony before the grand jury, there is nothing in this record "strictly and clearly" connecting Ball with such testimony on the part of said witnesses. A difficulty with plaintiff's argument is that there is no evidence disclosing what Ball said to the prosecuting attorney, to the grand jury, or to Mesey, Chappell, or Gilbert, if anything.
Plaintiff has failed on two essential elements of his case. He has failed to produce substantive evidence that Ball brought about his indictment, and has not made a submissible issue on want of probable cause, having failed to adduce sufficient evidence to rebut the prima facie case of probable cause he established when he proved he had been indicted.
Error is alleged in compelling plaintiff (1) to redraft his petition into two counts and (2) requiring a separate trial on count one. We find no order on plaintiff to redraft his petition in two counts. The court sustained motions to strike certain  portions of plaintiff's original petition and plaintiff thereafter filed an amended petition in two counts. Plaintiff waived the error, if any, by filing his amended petition and proceeding to trial. Bryan v. Louisville N.R. Co., 292 Mo. 535, 238 S.W. 484; Williams v. Chicago, S.F. C. Ry. Co., 112 Mo. 463, 485, 486, 20 S.W. 631, 637(1). The complaint respecting a separate trial is not preserved in plaintiff's motion for new trial. It is without merit.
Plaintiff testified that about the middle of January, 1948, two St. Louis policemen, defendant Smith and a deputy sheriff took him into custody in St. Louis. The court sustained defendant's objection to a question calling for his conversation with Smith at that time. The court also sustained an objection to a question calling for a conversation between plaintiff and defendant Ball "with reference to this indictment." Error is alleged. There is no offer of proof of record in either instance and reversible error is not established, irrespective of other possible grounds for disallowing the points. Woodard v. Stowell (Mo.), 222 S.W. 815, 821, citing cases; City of St. Louis v. Pope (Mo.), 121 S.W.2d 861, 862.
Complaint is made of the court's refusal to permit the prosecuting attorney to state whether defendant Ball did or did not testify before the grand jury. The issue is without merit for several reasons. Plaintiff introduced in evidence, without objection, the subpoena requiring Ball's attendance upon the grand jury and the sheriff's return showing due service, as well as the indictment with Ball's name endorsed thereon as a witness. This permitted an inference that Ball appeared and testified before the grand jury. Defendants' counsel stated of record the fact that a witness was subpoenaed constituted reasonable ground for thinking he appeared before the grand jury. We have considered Ball appeared and testified before the grand jury in ruling this review.
We conclude reversible error was not committed under the record made. The judgment is affirmed. Westhues and Barrett, CC., concur.
The foregoing opinion by BOHLING, C., is adopted as the opinion of the court. All the judges concur.