Walker v. Smay

Citations

• 108 Kan. 496
• 196 P. 231
• 1921 Kan. LEXIS 205

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Malicious Prosecution — Both Malice and Want of Probable Cause Must Be Proven. To recover damages for the malicious prosecution of a civil suit plaintiff must allege and prove not only that the defendant was actuated by malice in commencing the prosecution but also that it was instituted without probable cause.</p> <p>2. Same — Malicious Prosecution — Malice a Question of Fact for Jury— When Want of Probable Cause is Question of Law for Court — Evidence. The existence of malice is ordinarily a question of fact for the jury, but where there is no dispute in the testimony, the presence or absence of probable cause is a question of law for the court, and it is held that the testimony of plaintiff in the instant case failed to show that the prosecution was instituted with malice or without probable cause.</p>