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168 Ky. 301

Cook v. Bratton

Court of Appeals of Kentucky

Decided February 4, 1916

Court of Appeals of Kentucky · decided 1916-02-04

<p>Malicious Prosecution — Malice—Want of Probable Cause. — To sustain an action for malicious prosecution, it must affirmatively appear, (1) that tiie defendant was the proximate and efficient cause of putting the law in motion against the plaintiff in the action; (2) that he did so maliciously; and, (3) without probable cause. These three elements, malice, want of probable cause, and a procuring of the warrant or indictment, must concur.</p>

Key passage — most relied on by later courts

““It is thoroughly established in this jurisdiction, and generally, that to sustain an action for malicious prosecution, it must affirmatively appear (1) that the defendant was the proximate and efficient cause of putting the law in motion against the plaintiff in the action; (2) that he did so maliciously; and, (3) without probable cause. These three elements, malice, want of probable cause and a procuring of the warrant or indictment, must concur.””

quoted by 1 later decision, including Ballard v. Cash

Good law ✅— No negative treatment on recordhow we know

Decided 1916-02-04

How this case has been cited

Cited by 13 later decisions — most recently September 2016

1 federal appellate · 12 state decisions

7019161920193019401950196019701980199020002010decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

¶1OPINION OP THE COURT BY

ChIEP JUSTICE MlLLER-

¶2Reversing.

¶3The appellant, Cook, brought this action against the appellees, Bratton and Willis, to recover damages for their alleged malicious prosecution of Cook; and, the circuit court having sustained a demurrer to the petition as amended, Cook appeals.

¶4The action was the result of the indictment and trial of Cook in the Fulton circuit court for committing and maintaining a common nuisance, in the form of a disorderly house at his place of business. The prosecution resulted in Cook’s acquittal. Cook v. Commonwealth, 159 Ky., 840.

¶5The petition alleges that Bratton and Willis, who were the defendants below, conspired and confederated together to damage and destroy the appellant’s reputation and character, by maliciously setting on foot the prosecution and procuring Cook to be indicted and tried, as above indicated, without any reasonable cause in law, or otherwise, to believe the appellant was guilty of said offense; and that upon a trial the appellant was acquitted.

¶6The amended petition further alleges that the ap-pellees voluntarily, and without being summoned, not only went before the grand jury and gave their testimony which led to the indictment of appellant, but that they also procured, caused and persuaded other persons to voluntarily do likewise, thereby maliciously bringing' about the indictment of appellant.

¶7It is true the petition is somewhat prolix; but, since-modern systems of procedure- require1 pleadings to be: *302intelligible rather than nice, the petition must be judged by the facts which it states rather than by the manner in which it states them.

¶8It is thoroughly established in this jurisdiction, and generally, that to sustain an action for malicious prosecution, it must affirmatively appear (1) that the defendant was the' proximate and efficient canse of putting the law in motion against the plaintiff in the action; (2) that he'did so maliciously; and, (3) without probable cause. These three elements, malice, want of probable cause and a procuring of the warrant or indictment, must concur. McClarty v. Bickel, 155 Ky., 254; Schott v. I. N. L. Ins. Co., 160 Ky., 533; Dunn v. Deskins, 163 Ky., 689.

¶9While the petition does- not charge, in so many words, that appellees acted without probable cause, it does allege that “they had, and knew they had, no reasonable cause in law, or otherwise, to believe the appellant guilty of the offense for which he was indicted.” This was a sufficient averment of a want of probable cause; and, in so treating it, the petition contained the three allegations essential in stating a case for malicious prosecution.

¶10It follows, therefore, that the circuit court erred in sustaining the demurrer to the petition.

¶11Judgment reversed and cause remanded, with' instructions to overrule the demurrer to the petition, and for further proceedings.

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