Medcalfe v. Brooklyn Life Insurance

Bowie, J., delivered the opinion of the Court. The subject of the present appeal, is an action for malicious prosecution, brought by the appellant, an agent or solicitor 'of policies, against the appellee, a corporation, organized under the laws of the State of New York, known as “The Brooklyn Life Insurance Company of New York.” The gravamen of the suit is, that the appellee, on the first of May, 1873, at the City of Baltimore, falsely, and maliciously, and without any reasonable or probable cause whatsoever, charged the appellant, then being the agent of the appellee, with fraudulently embezzling the money ²⁰² of the appellee, and caused the appellant to he arrested, and held to hail for his appearance before the Criminal Court of the City of Baltimore, etc., from ryhich arrest, he was afterwards discharged, the grand jury finding no presentment against him. Issue was joined on the plea of “not guilty.” At the trial, two exceptions were taken hy the appellant; the first, to the exclusion hy the Court of certain questions propounded hy the appellant; the second, to the rejection of the appellant’s prayers, and the granting of the first, third, and fifth of the appellee,. and to the assent of the Court to the withdrawal of his second and fourth prayers. The first exception is unimportant in the consideration of this appeal, inasmuch as the questions which arise on the prayers, go to the existence of the right of action, and are conclusive of the matters in controversy.

The plaintiff’s, or appellant’s prayers, present substantially the following propositions: 1st. That the appellant must have fraudulently intended to embezzle the appellee’s money, and cheat the company, to constitute the offence with which he was charged, under the 49th sec. of the 30th Art. of the Code of Public General Laws, etc. 2nd. That if the company first advised with Messrs. Merryman & Bryan, in relation to their claim against appellant, in the sum of $1400, and had their advice, and afterwards ceased to employ them, they cannot defend the wrong of which the appellant complains, upon the ground that they afterwards consulted and acted upon the advice of other counsel. 3rd.

That it is a question for the jury, whether the appellant acted fraudulently in the use of the sum of $1400. 4th. That whether the defendant was actuated hy malice in causing the arrest, etc., was a question of fact. 5th. That whether there was probable cause for the institution of the criminal proceedings, etc., was a question to he decided hy the jury. ²⁰³ 6th. That if the jury found for the plaintiff, the amount of damages should he such as the jury might think right and proper under all the circumstances.

The defendant’s first, third and fifth pkayers, which were granted, affirm these propositions : First. That there was no evidence from which the jury could find that the prosecution complained of, was instituted without probable cause. Third. That there is no proof legally sufficient to connect the defendant with the arrest, and prosecution of the plaintiff.

Fifth. That the action can only be maintained by proof of actual malice against the plaintiff, in the institution of the prosecution complained of, and such malice cannot be predicated of a corporation, and this action cannot be maintained. The prayers of the appellee are in the nature of demurrers to the evidence. The first and third declare the insufficiency of the testimony, in certain essential particulars, to the maintenance of the action.

The fifth assumes the broader ground, that an action for malicious prosecution does not lie against a corporation aggregate, because it is incapable of malice. No decision has been made in this State, upon the question raised by the appellee’s last prayer. In other States of the Union, and in Great Britain, a great contrariety of opinion has existed on this point, and conflicting decisions have been pronounced by Judges and Courts, of equal eminence and authority. It is not necessary, and we therefore do not propose to endeavor to reconcile these, or announce any conclusion on this point, in the present case.

The action for malicious prosecution, as it is laid down in all the text-books and reports, depends upon the proof of two facts, — the want of probable cause for th.e pro ²⁰⁴ secution, — and malice on the part of the prosecutor, as the motive of the prosecution. The union of these two conditions, is essential to the injury, know# as malicious prosecution. The absence of either, is fatal to the suit. Malice may he inferred from the want of probable cause, hut where probable cause exists, malice, however intense, will constitute no cause of action.

In the case