Glover v. Fleming

³⁸² Davidson, J., delivered the opinion of the Court. After 7:30 p.m., on 22 August 1974, seven employees, including Michael R. Fleming and Robert C. Gray, were on duty at the Alban Tractor Co., Inc. At 6:30 a.m., on 23 August 1974, James R. Glover, the parts operation manager, learned that $460 had been taken from a cash drawer in an inner office. Glover called the police who interviewed six of the men who had been on duty. Gray was not interviewed because he did not report for work on 23 August.

It was learned that before the theft Gray had borrowed a ring of keys containing a key to the inner office from another employee, and had removed and replaced that key before he returned the ring. Subsequently, the police advised Glover that the interviews had not produced sufficient evidence “to charge anyone.” Glover opined that Gray was a “prime suspect,” but stated that he had no definite proof. They decided to administer polygraph tests to Gray and another employee. The tests were interpreted as showing that Gray had not truthfully answered questions about his involvement in the crime, and that he himself had either taken the money or knew who had taken it.

Thereafter, Gray told the police and Glover that he had seen Fleming take the money and that he would so testify in court. The police and Glover questioned Fleming who denied the theft. After consulting with another company official, Glover applied for a warrant. Fleming was arrested and charged with larceny.

According to Glover, at the time he filed the complaint he “didn’t know” whether Fleming had committed the crime. He filed the complaint because “we wanted to find out who the guilty party was.” The State’s Attorney, having determined that there was not enough evidence for a conviction, asked that Fleming be given a lie detector test. The test showed that he “had no involvement with the crime.” On 12 November 1974, the charge was dismissed. Fleming terminated his employment with the company in January, 1975.

On 29 January 1975, in the Circuit Court for Baltimore ³⁸³ County, Fleming, the appellee, filed suit against Glover and Alban Tractor Co., Inc., the appellants, seeking damages for malicious prosecution. A jury, presided over by Judge Kenneth C. Proctor, found them liable. Here, the appellants contend that the trial court erred: 1) in refusing to grant their motion for a directed verdict because Fleming had failed to establish a lack of probable cause; and 2) in refusing to grant their motion for judgment notwithstanding the verdict because “the uncontradicted evidence negated any inference of malice.” The elements of malicious prosecution are: 1) a criminal proceeding instituted by the defendant against the plaintiff; 2) termination of the proceeding in favor of the accused; 3) the absence of probable cause for the proceeding; and 4) malice, or a primary purpose in instituting the proceeding other than that of bringing an offender to justice. 1 Probable cause has been defined as: “ ‘A reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man in his belief that the person accused is guilty of the offense of which he is charged.’ ” 2 Viewed in the light most favorable to Fleming, 3 the evidence here shows that the basis for Glover’s belief that Fleming was guilty was Gray’s statement that Fleming had stolen the money. The record also shows that Gray was a person of questionable credibility.

He was initially suspected of having committed the crime. A polygraph test was interpreted as indicating that he did not answer questions truthfully. In this context, Glover’s