Iron Mountain Bank v. Mercantile Bank

Missouri Court of Appeals

Iron Mountain Bank v. Mercantile Bank

4 Mo. App. 505, 1877 Mo. App. LEXIS 125

Missouri Court of Appeals·Decided November 27, 1877·Published·Cited by 11 cases

Opinion

Bake well, J.,

delivered tbe opinion of tbe court.

The case presents the same question determined by this court in tbe case of Keber v. Mercantile Bank, recently decided by this court. Tbe plaintiff seeks to avail itself of its common-law remedy for damages arising from an injunction, but does not charge that tbe injunction was an abuse of tbe process of tbe court through malice and without probable cause. In this case the demurrer of defendant was overruled by the court, and plaintiff obtained judgment. In the Keber case the demurrer was sustained. Otherwise, the cases are the same.

• The Circuit Court erred in overruling the demurrer of defendant, and the judgment cannot be sustained. There can be no recovery of damages arising from an injunction, except in an action on the bond, unless it be averred and shown that the process of the court was abused maliciously and without probable cause.

Counsel for respondent argues that, if this be so, there can be no recovery against a corporation for damages caused by an injunction, except upon the bond, because, he says, a corporation is incapable of malice. A corporation, however, is liable for torts ; it can commit trespass and dissei-zin, and it is now held in Missouri, as generally elsewhere, that a corporation may be liable for the malicious acts of its agents. Gillett v. Railroad Co., 55 Mo. 318. A corporation may be liable for a malicious prosecution commenced by its agents in the scope of their employment. 'There has been a complete change in the rulings in this [507]*507respect since Childs v. Bank of Missouri was determined. Tbe common law action for damages arising from an injunction is essentially an action for malicious prosecution. Tbe failure in tbe suit determines tbe wrongfulness of tbe claim, but it does not therefore give a common-law action for damages to defendant. The wrong is not tbe falsehood ■or injustice of tbe claim, but that it was without probable cause. It is, therefore, not'enough to allege that the action was wrongfully brought. The case of Keber v. Mercantile Bank is decisive of the case at bar, and the judgment of the Circuit Court is reversed and the cause remanded.

All the judges concur.

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Bake well, J.,

delivered tbe opinion of tbe court.

The case presents the same question determined by this court in tbe case of Keber v. Mercantile Bank, recently decided by this court. Tbe plaintiff seeks to avail itself of its common-law remedy for damages arising from an injunction, but does not charge that tbe injunction was an abuse of tbe process of tbe court through malice and without probable cause. In this case the demurrer of defendant was overruled by the court, and plaintiff obtained judgment. In the Keber case the demurrer was sustained. Otherwise, the cases are the same.

• The Circuit Court erred in overruling the demurrer of defendant, and the judgment cannot be sustained. There can be no recovery of damages arising from an injunction, except in an action on the bond, unless it be averred and shown that the process of the court was abused maliciously and without probable cause.

Counsel for respondent argues that, if this be so, there can be no recovery against a corporation for damages caused by an injunction, except upon the bond, because, he says, a corporation is incapable of malice. A corporation, however, is liable for torts ; it can commit trespass and dissei-zin, and it is now held in Missouri, as generally elsewhere, that a corporation may be liable for the malicious acts of its agents. Gillett v. Railroad Co., 55 Mo. 318. A corporation may be liable for a malicious prosecution commenced by its agents in the scope of their employment. 'There has been a complete change in the rulings in this [507]*507respect since Childs v. Bank of Missouri was determined. Tbe common law action for damages arising from an injunction is essentially an action for malicious prosecution. Tbe failure in tbe suit determines tbe wrongfulness of tbe claim, but it does not therefore give a common-law action for damages to defendant. The wrong is not tbe falsehood ■or injustice of tbe claim, but that it was without probable cause. It is, therefore, not'enough to allege that the action was wrongfully brought. The case of Keber v. Mercantile Bank is decisive of the case at bar, and the judgment of the Circuit Court is reversed and the cause remanded.

All the judges concur.

Iron Mountain Bank v. Mercantile Bank, 4 Mo. App. 505, 1877 Mo. App. LEXIS 125 (Mo. Ct. App. 1877).

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Opinion

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