Goldstein v. Rau

Adkins, J., delivered the opinion of the Court. Appellants are two of five defendants who were sued for malicious prosecution by the appellee, one of the other defendants having been returned non est, and the verdict having been in favor of the other two under instructions of the trial court. The narr. alleges that the. defendants and each of them did, on or .about February 21th, 1921, charge upon oath before Magistrate Chapman, one of the police justices of Baltimore City, that the plaintiff owned and maintained a dog in violation of Ordinance No1. 138, by allowing said dog to disturb a certain neighborhood; that as a result of such charge a warrant was served on the plaintiff at her home, by a police officer who- took her into- custody, placed her in an automobile -of the Police Department o-f Baltimore City and transported her over the public highways of said city to- the- Northwestern P'olice Station, “where she was docketed as a prisoner, searched, and forthwith placed in a cell for a considerable time,” until subsequently released on bail, plaintiff having prayed a jury trial, that the said defendants, and each of them, made the aforesaid charges and accusations against the plaintiff from motives of malice ¹² and that there was no reasonable or probable cause; that the said defendants and each of them falsely and maliciously and without cause procured the plaintiff to b© indicted upon the unfounded charge of violating said ordinance “by allowing her dog to disturb a certain neighborhood,” on which charge she was duly tried and acquitted, “in consequence whereof the plaintiff has suffered great pain and mental anxiety, has been put to great cost and expense and is otherwise injured and damaged.” Defendants filed general issue pleas. A verdict was found against appellant for $150.

On motion of appellants a new trial was granted, and on a second tidal a verdict was found by a jury against appellants-for $250. This appeal is from a judgment on that verdict. The one bill of exception is to the ruling of the trial court “in granting the plaintiff’s second and third prayers, and in rejecting the defendant, Nettie Goldstein’s, first, second and third prayers', and in rejecting the defendant, Oscar Oeoil’s^ ‘defendant’s prayer’ and his third and fourth prayer. The reporter is- requested to set out plaintiff’s granted prayers and all the prayers of the defendants.

We find no- error in the ruling on any of the prayers. Plaintiff’s second prayer simply defines “probable cause.” ILer third is the usual measure of damages prayer. The- defendant Nettie Goldstein’s first rejected prayer, and the rejected prayer of OsCar Oeeil marked “prayer of the defendant, Oscar C'eeil,” are demurrers to the evidence. These will he- discussed later.

The third prayer of the defendant Goldstein was properly refused because it is argumentative, and so far as it is a demurrer to the evidence, is covered by her first prayer: Her second prayer is a variance prayer and does not set out in what the variance consists. Defendant Oscar Cteeil’s first prayer -was withdrawn and his second prayer was granted as amended. His third prayer was properly refused because it sought to have submitted to- the jury only the fact as to whether of not the said defendant swore out the warrant of arrest, basing the verdict ¹³ on the finding as to that fact, and omitting all reference to his participation otherwise in the prosecution. As the second prayer of this defendant, as amended (there appearing on the record no objection or exception to the amendment), submitted the omitted fact to the jury, it was a concession that there was evidence .as to that fact.

His fourth prayer was properly refused because it is argumentive and diseussess the law in general without submitting specific facts to be found by the jury. This leaves for consideration the demurrer prayers above referred to'. These prayers axe based on the contention of appellants that there was no evidence legally sufficient to show want of probable cause for the prosecution. In suits for malicious prosecution, the burden is upon the plaintiff to prove that the prosecution complained of was instigated by the defendant without probable cause and that it terminated in an acquittal, dismissal or .abandonment.

Malice is also a necessary element but, When not negatived, it may be inferred by the jury from the absence of probable cause, though no express malice be shown. Where probable cause is shown, no suit will lie for malicious prosecution, whatever the actual motive for the prosecution may appear to have been. Probable cause, as defined in a number of eases, is: “Such reasonable ground of suspicion supported by circumstances sufficiently strong in themselves as to warrant a cautious man in believing the party .accused to be guilty.” Whether the evidence in any given case is legally sufl> cient to show want of probable cause is a question-of law; or, as said in Thelin v. Dorsey, 59 Md. 545 , “what will amount to the want of probable cause, in any Case, is a question of law for the court.” Sea Jordan v. The James & Holstrom Piano Co., 140 Md. 201 , and cases there cited. The testimony on behalf.of the plaintiff tends to prove that in February, 1921, she Was living with her father, George G. Eau, and her brother, • George D: Eau, Jr:, 2130 Walbrook Avenue, and was keeping house for her father; ¹⁴ that her brother owned the dog of whose barking complaint was made; that the license was issued in