Bishop v. Frantz

Briscoe, J., delivered the opinion of the Court. This is an action for malicious prosecution brought on the 14th day of January, 1914, by the appellee, the plaintiff below against the appellant, the defendant, in the Circuit Court for Washington County. The plaintiff recovered a verdict of $1,000, but upon a remittitur, the verdict of the jury was reduced to the sum of five hundred dollars, and from a judgment in favor of the plaintiff for the last named amount, the defendant has ap-. pealed. The questions to be -considered by us are presented by a single 'exception and that is, tp the ruling of the Court below in the -course of the trial, on the prayers.

Th'e-plaintiff’s first and second prayers were granted,' with a modification by the Court of the first prayer. The defendant’s first; second, fifth and sixth prayers were refused. The third was granted, as modified by the Court, and the fourth was also granted. The facts of the case, so far as they may be necessary for the purposes of this appeal, briefly stated, are these: Dr. E. Tracey Bishop, owned a fruit farm near Smiths-burg, in Washington County, and during the year, 1913, this farm was under the care and management of his daughter, the defendant below, and the appellant here, as agent.

On the 13th day of January, 1913, as agent for her father, she entered into a written contract with the appellee, whereby she agreed to employ and engage him “to- cultivate and" care for in a scientific and farm like manner” all the lands mentioned therein, “including the orchard and workable lands about the home place, on the Waynesboro road.” In consideration of the services specified and required by the ¹⁸⁸ contract she was to pay him the sum of $500 for one year, in monthly payments of not less than fifteen dollars per month. The year’s service was to begin with April, 1913, and end one year thereafter. The contract contains a provision that “each party agrees to give not less than two months’ notice.’’ She was to give him a house, garden and lot, the possession of which was to be surrendered to the owner at once upon expiration or cancellation of the agreement. There were certain restrictions, limitations and other requirements imposed by the contract which need not be set out in detail here.

On Uovember 3rd, 1913, after repeated differences and contentions between the parties, and after seeking the advice of her attorney, the following notice was given the plaintiff by the defendant: “I hereby notify you that I no longer desire your services and you shall consider yourself discharged from my employment, as I have heretofore notified you orally. And I further give you notice that you shall cease to go upon any of the fields of the farm where you are now living; and that you shall move your property and yourself from said farm and premises within ten days from this date.” On the 4th of Hovembei’, 1913, the defendant swore out a warrant for his arrest for trespass under the Act of 1900, Chapter 66, and upon being arrested he was brought before J. H. Ferguson one of the Justices of the Peace of the State, in and for Washington County, where upon praying a jury trial, and giving bond, he was released for trial, before the Circuit Court of Washington County. Subsequently, Mr. Harvey" B. Spessard, attorney for the defendant requested the State’s Attorney for Washington County not to prosecute the case, and it was either dismissed or abandoned, . Afterwards, on the 14th of January., 1914, this suit was instituted by the plaintiff against the defendant, to recover ¹⁸⁹ damages for the arrest and malicious prosecution of the appellee, under the warrant issued by the Justice of the Peace,, as set out in the declaration filed in the case.

The rules of law, upon cases of this character, have .been so clearly and carefully stated, in the recent decisions of this Court, wherein the former cases, upon the subject of malicious prosecutions have been fully reviewed and adopted, that it would answer no good purpose to prolong this opinion, by an extended review of them. A citation of a few of the cases, will be found sufficient, for the conclusion, we have reached, on the record, now before us. Moneyweight Scale Co. v. McCormick, 109 Md. 170 ; Lasky v. Smith, 115 Md. 374 ; Mertens v. Mueller, 119 Md. 534 ; Brown v. Smith, 119 Md. 249 ; Chapman v. Nash, 121 Md. 611 ; Mertens v. Mueller, 122 Md. 317 . The declaration is in the usual approved form in such cases, and charges in substance that the warrant and bail bond was sent to the clerk of the Crcuit Court by the Justice of the Peace, to> await trial at the next term of that Court, and that the case was entered upon the criminal recognizance docket of the Court but that the State’s Attorney refused to prosecute it, and the suit was abandoned.

It then avers, that the sweax-ing out of the wax-rant and the posecutioxx of the plaintiff by the defend aixt was falsely and maliciously done without any reasonable or probable cause and there was m> x-easonable or probable caxxse for the wax-rant and ax-x-est, and that the charge was made through motives of malice, and-that as a result the plaintiff was greatly wx-onged and ixxjured. It is admitted aixd not disputed by the appellant, that there was a cxfinxinal px-osecutioxx as set oxxt ixx the declax-ation, and that it terxninated ixx favor of the accused before the institution of this suit, bxxt it is earnestly ixxsisted upon the part of the defendant, that there was xxo evidence legally sufficient to establish the waxxt of probable caxxse or to show malice, ixx swearing oxxt the wax-rant, under the facts of the case. In Boyd v. Cross, 35 Md. 196 , it is said, “to entitle the plaintiff to recover for malicious px-osecutioxx, it was incum ¹⁹⁰ bent upon him to prove affirmatively, that he ha,d been prosecuted, or that a prosecution had been instigated, by the dofendants, or one of them; that such prosecution had terminated in his discharge or exoneration from the accusation against him; and that such prosecution was both malicious and without probable cause on the part of the defendants. All of these propositions must' concur, and be established by the plaintiff, to entitle him to maintain his action.

If the evidence adduced be legally insufficient to be submitted to the jury to prove each and all of these elements of the plaintiff’s case, his action could well be pronounced groundless, and the defendant not be called on for his defense. What will amount to- such combination of malice and want of probable cause, as will entitle a party to maintain an action, says Chief Justice Tindall (Williams v. Taylor, 6 Bing. 183), is so much a matter of fact in each individual case, as to render it impossible to lay down any general rule on the subject; but there ought to be enough to satisfy a reasonable man that the accuser had no ground for proceeding but his desire to injure the accused. Perhaps the most accurate definition of probable cause is that given by Judge Washington, in Munns v. Dupont, 3 Wash. C. C. Rep. 31 , us being “such reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves, to warrant a cautious man in believing the party accused to be guilty.” While it is well settled in cases of this kind that the plaintiff must prove that the prosecution was both malicious and without probable cause to entitle a recovery, the existence of malice is a question of fact for the jury, under the circumstances of each case.

Boyd v. Cross, 35 Md. 194 . It is also well established that the want of probable cause is a mixed question of law and fact. In Boyd v. Cross, 35 Md. 196 , it is said and re-affirmed in subsequent cases, as to the existence of the facts relied on to constitute the want of probable cause, that is a question for the jury; but what will amount to the want of probable cause in any case, is a question of law, for the Court. The ¹⁹¹ jury, in our practice, are always instructed hypothetically as to what constitutes probable cause or want of it, leaving to them to find the facts embraced in the hypothesis.

Cooper v. Utterbach, 37 Md. 282; Torsch v. Dell, 88 Md. 459 ; Chapman v. Nash, 121 Md. 611 . We cannot hold then, upon the facts and circumstances of this case as disclosed by the record, that there was no legally sufficient evidence to be submitted to a jury to establish malice and want of probable cause upon the part of the defendant, in the arrest and prosecution of the plaintiff, as set forth in the declaration. It would be extending the doctrine established by the cases relied upon by the appellant, much further than it ever was intended by those cases if under the facts of this case, we should so hold. A brief review of the evidence, will disclose the following state of facts, presented in the course of the trial: The plaintiff testified that he entered upon the employment, in pursuance of the contract, on the 7th of March, 1913, and discharged his duties in a workmanlike manner.

He identified the written notice offered in evidence, as the one that was served upon him, and testified further as follows : “She took all the feed away, turned my hogs out down the lane, drove them down the lane and took the team away to prevent me from doing the work. When she moved the hay from the mow she threw some chicken coops down on the bam floor and broke a lamp on my surrey. She broke two locks for me, one was on the feed bin (the locks were produced at the trial). She took a barrel of my com out of the bin.

She took my pruning shears. After the expiration of ten days from the service of written notice, defendant came to the farm with a team and a man, who we afterwards learned was the defendant’s brother-in-law, and wanted us to move out. My wife became frightened, and they then went away, the man came to the house, and when he saw that my wife was frightened, he apologized and went away. Defendant did not come to the house.

I was arrested on Hovember ¹⁹² 4th, election day.. I was taken down through the town, past the polls to the magistrate’s office by the constable. There was a great many people on the street that day. I didn’t go back to husk corn that day.

Several days later I did. I took a two years’ course in the Maryland Agricultural College.” He further testified on cross-examination: “She told me to go and look at the peaches, and if they were fit we should pick them. I was there to use my own judgment and hers too. The trouble started when I wanted the balance of my money.

She owed me some wages. She told me to quit before the written notice was given. She came to the field where I was husking com and stood on the com pile so I could not throw the com on it. I was performing my contract.” Talbott Smith, a witness, testified, I helped to- haul the hay from the bam and saw Miss Bishop- throw the coops from the hay mow.

Do not know if they hit the surrey o-r not. Mrs. Frantz, the wife of the plaintiff testified I saw Miss Bishop turn our hogs out and drive them down the lane along the sweet, corn patch. This was while the plaintiff was -being taken down to the squire’s office, under arrest. Arthur L. Towson, a farmer and fruit grower and who lived on the adjoining farm testified that he was over there through the peach orchard once or twice and the plaintiff did his work well, that he observed how he did his work.

Claude M. Ferguson, the constable who made the arrest of the plaintiff, testified, “I saw defendant and talked to- her before the arrest. She spoke about the plaintiff feeding too many hogs. In the squire’s office I heard her say that she broke some locks and that she let his hogs. o-ut. The plaintiff was in the field husking com when I arrested him.” These were all of the witnesses examined upon the part of the plaintiff, except the Justice of the Peace and the State’s Attorney.

The former testified in substance that the defendant swore out the warrant for the arrest of the plaintiff, that he was arrested, brought to his office, and the defendant never ¹⁹³ inquired about the case after the arrest, that he never sent for Miss Bishop and the warrant was filled out by her attorney. The latter testified, that Mr. Spessard, the attorney for Miss Bishop came to him