Section 3.5 Generally

• Library: Tort Law 2016

1. (§3.5) Generally

"Probable cause [to instigate] a civil suit means a reasonable belief in the facts alleged, plus a reasonable belief that the claim may be valid" under the applicable law. State ex rel. Police Ret. Sys. of St. Louis v. Mummert, 875 S.W.2d 553, 555 (Mo. banc 1994). Probable cause to instigate a criminal proceeding "‘is reasonable cause and may be defined as the existence of such a state of facts as would warrant an ordinarily cautious and prudent man in the belief that the accused was guilty of the offense charged.’" Haswell v. Liberty Mut. Ins. Co., 557 S.W.2d 628, 633 (Mo. banc 1977) (quoting Higgins v. Knickmeyer-Fleer Realty & Inv. Co., 74 S.W.2d 805, 813 (Mo. 1934)).

The malicious prosecution defendant "is ‘responsible not only for all the facts which he knows at the time [of instituting the prior action], but for all other pertinent facts . . . ascertain[able] by due diligence prior to instituting’" that action. Holley v. Caulfield, 49 S.W.3d 747 (Mo. App. E.D. 2001) (quoting Buch v. Holliday, 803 S.W.2d 56, 60 (Mo. App. E.D. 1990)). Interestingly, this general rule does not appear to apply to lawyers:

It is not enough that he might, with reasonable diligence have ascertained that there was no probable cause for the prosecution. The attorney has a right, in good faith, to advise and act upon the facts which he gets from his client, and it is not his duty to go elsewhere for information.

Zahorsky v. Griffin, Dysart, Taylor, Penner & Lay, P.C., 690 S.W.2d 144, 154 (Mo. App. W.D. 1985) (quoting MECHEM ON AGENCY § 2220 (2^nd ed.)).

The underlying action in Holley, 49 S.W.3d 747, involved a quiet-title action...