Bowen v. Tascoe

Bryan, J., delivered the opinion of the Court: In this action the appellee obtained a judgment against the appellant in a suit for malicious prosecution. Several instructions were given to the jury by the Court; but our attention will in the first instance be directed to a prayer of the defendant which the Court rejected. We will state it: ⁴⁹⁸ “The defendant prays the Court to instruct the jury that there is no evidence of malice or want of probable cause as against the defendant for the alleged malicious prosecution, and that therefore the plaintiff is not entitled to recover.” It was necessary for the plaintiff to prove that the defendant had caused him to be prosecuted maliciously and without probable cause. If there was no probable cause for the prosecution it was competent for the juiy to infer malice.

The present inquiry may then be narrowed down to a consideration of the evidence which bears on the question of probable cause. If there was any proof tending to show that this did not exist, or which furnished a ground from which its non-existence might rationally be inferred, it was necessary to submit the question to the jury. If such evidence be found in the case, it is altogether unimportant to consider whether it is countervailed by proof of a contradictory character. Because, however positive and conclusive the contradiction may be, the decision of the matter in controversy falls within the province of the jury.

They must weigh the conflicting testimony and render a decision upon it according to their own judgment. Tascoe, the plaintiff, testified that he had been a waiter at the Merchants’ Club in the city of Baltimore for six years, and had been a trusted servant. That one evening as he was leaving the club he was stopped by Major Hill, who was the managing director of the club, and was asked by him what he had in his pocket; that he replied that he had some scraps which he was carrying home to feed his dog; that upon examination it was found that he had part of a beefsteak which had been left by a customer and about a quarter of a pound of butter which was made up from what had been served to guests and had been left by them; that he had always been accustomed to carry away scraps that were left by the guests, and that such scraps were usually thrown into the garbage; that he had never been told by any one that he should not take anything from the club house, and that it was the custom of waiters to take what ⁴⁹⁹ the guests left. On cross-examination he testified that the butter he had in his pocket did not belong to him.

He also testified that he did not tell Major Hill that the package containing butter was soap ; he said that he had soap in the same pocket which he had bought for his own use that day. The plaintiff introduced other witnesses. One of them, Siegel, testified that there was a general rule that no bundles were to be taken from the club, but this rule was not written and posted up in any place on the premises. On cross-examination he said that he had heard Tascoe named in regard to this rule, and had heard him told not to take any bundles away from the club.

Another of plaintiff’s witnesses (Bland) testified that he was the head waiter of the club, and that Major Hill’s orders were that no bundles should be taken from the club, and that he (Bland) had passed the orders down the line; he gave these orders to all the waiters, but did not do so collectively ; the orders were not written and posted in any place on the premises • that all the food and supplies were bought and paid for by Bowen and sold and served to the guests as ordered. Bowen was the steward of the club. On cross-examination he testified that he had warned Tascoe time and again not to take any bundles from the club; had said to him for God’s sake stop carrying things away, that he would get himself into trouble if he did not stop; was called after Tascoe was stopped by Major Hill and shown the contents of the bundles, and thought the butter taken amounted to about a pound. Tascoe was arrested on a charge of larceny made against him by Bowen, and was detained about two hours before he gave bail.

The charge was afterwards dismissed by the grand jury. According to Tascoe’s evidence he took property which he knew belonged to another person, and concealed it about his person for the purpose and with the intention of appropriating it to his own use. The value of the thing taken was small; but we must consider the question of right. There is no possible construction of any portion of the tes ⁵⁰⁰ timony which would entitle him to