Stansbury v. Fogle

Miller, J., delivered.the opinion of the Court. In several very recent cases, one of which (Cooper vs. Utterbach, ante. 282,) has been decided at the present term, this Court has had occasion to consider the general ³⁷⁹ rules of law governing actions for malicious prosecution and false imprisonment, and we shall therefore proceed^at once to determine the particular questions presented for review by this appeal. These are the rulings of the Superior Court in granting the three prayers offered by the plaintiff, and rejecting the defendant’s first, fifth and seventh prayers. 1st. The objections to the plaintiff’s first prayer are that it assumes as facts (what was clearly established by the proof in the case,) that the plaintiff was arrested and imprisoned upon a criminal charge, and that the prosecution against him had been terminated by his exoneration and dischaage, and that it submits to the jury a question of law in allowing them to find that such prosecution was without probable cause.

But it does not appear from the record that objection to the prayer upon either of these grounds was taken at the trial. This Court is therefore precluded by its Fourth Rule and Regulation respecting appeals, from considering either of these objections, no matter how well founded and fatal to the judgment they might be if properly presented for revision. That Rule, which was in force when this case was tried, was made and prescribed by the Judges of the Court of Appeals under and by authority of the eighteenth section, of the fourth article of the Constitution, and by virtue thereof has “the force and operation of law until rescinded, changed or modified by the said Judges or the General Assembly.” It provides among other things that no instruction actually given shall be deemed by the Court of Appeals to be defective by reason of any assumption therein <of any fact, or because of a question of law having been thereby submitted to the jury, unless it appear from the record that an objection thereto for such defect was taken at the trial. It is a rule of easy observance, is in strict accordance with previous legislative enactments upon the same subject, and tends to prevent expense, delay and hindrance of justice ³⁸⁰ resulting from reversals of judgments upon grounds not presented to or considered by the tribunals that rendered them.

If these objections to this prayer had been suggested to the opposing ^counsel, or to the Court in the trial of the case, it would have been easy to obviate them by a different framing of the instruction, or if so presented and overruled by the Court, it was equally easy to make that fact apparent upon the record. 2d. The plaintiff’s second prayer is addressed to the question of malice. As originally presented it asked the Court to instruct the jury that if they believed from the evidence that the prosecution against the plaintiff was instituted or caused to be instituted by the defendant, under such circumstances as would not have induced a reasonable and dispassionate man to believe that the plaintiff was guilty of the crimes so charged against him, then they may infer that the defendant was actuated by malice in instituting or causing the institution of such prosecution. To this was then appended this conceded addition: “While it is competent for the jury to infer malice from a want of probable cause, the question whether the defendant was actuated by malice or not is one to be determined upon the whole evidence, and if upon the whole evidence the jury believe that the defendant did not act maliciously, then their verdict must be for the defendant,” and with this addition the prayer was granted.

As was said in Boyd vs. Cross, 35 Md. Rep., 197 , “Malice is a question of fact for the jury, and its existence may be and most generally is inferred from the want of probable cause for the prosecution, but it does not necessarily follow that because there is an absence of probable cause the defendant must have been actuated by malice. The presumption of malice resulting from the want of probable cause is only prima facie, and may be rebutted by the circumstances under which the defendant acted.” This prayer with its conceded addition gave the defen ³⁸¹ dant the full benefit of this law, and the only objection that has been urged to it is that it gives an erroneous definition of want of probable cause. In this respect the prayer contains a simple negation of what in law constitutes probable cause. That which is generally considered the best definition of these terms is the one given by Mr. Justice Washington in Munns vs. Dupont, 3 Wash.

C. C. Rep., 31 , cited with approval in Boyd vs. Cross, viz: “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 offence of which he is charged.” But it is not necessary to follow the precise words of this definition. It is sufficient if language of equivalent import is uSed. Thus in Cooper vs. Utterbach, the Court’s instruction that probable cause means the existence of such facts and circumstances as would excite the belief in a reasonable mind acting on the facts within the knowledge of the defendant, that the plaintiff was guilty of the crime for which he was prosecuted, was held to be identical in meaning with that adopted by Judge Washington, and the appellee’s second and fourth prayers affirmed in that case, define want of probable cause in very nearly the exact language employed in the instruction we are now considering. Again, the jury in this case were instructed at the instance of the defendant himself, by the granting of his third prayer, that the burden is upon the plaintiff to prove that there was an absence of such probable cause for the prosecution as would justify an ordinarily prudent man in instituting the same, and not upon the defendant to prove the contrary.

In our judgment the language of the prayer in this respect is equivalent in meaning to that sanctioned and approved by adjudged cases of the highest authority. In addition to those already cited we refer to the cases of Wheeler vs. Nesbitt, 24 How., 551, 552 ; Humphries vs. Parker, 52 Maine 505 ; Spangler vs. Davy, 15 Grattan 388, and to 1 Amer. Lead. Cases, 213, where the annota ³⁸² tors in their notes to the case of Munns vs. Dupont have collected a large number of cases on this point. 3rd.

The plaintiff’s third prayer is directed to the question of damages. It asserts, that if the jury shall find a verdict for the plaintiff, (that is to say, if they first find every thing necessary to support the action mentioned or assumed in the preceding prayers, including the finding upon the whole evidence, that the defendant in instituting or causing the institution of the prosecution, was actuated by malice,) then they are at liberty to take into consideration all the circumstances of the case, and award such damages as will not only compensate the plaintiff for the wrong and indignity he has sustained, in consequence of the defendant’s wrongful act, but may also award exemplary or punitive damages, as a punishment to the defendant for such wrongful acts. The correctness of this instruction, was not seriously questioned in argument, and we know of no authority which has decided that, in an action like the present, and under such circumstances as this case discloses, the jury is not at liberty to award exemplary or punitive damages. The .case in all its features, is wholly unlike that of Sears vs. Hathaway, 12 Cal., 277 , referred to by the appellant’s counsel. 4th.

The defendant’s first and seventh prayers are addressed to that branch of the case which relates to the' defendant’s participation in the prosecution of the plaintiff. Upon this subject there is much conflicting testimony. These facts however appear to be undisputed; the plaintiff was arrested by a police officer in the law office of Mr. Waterman, on the 10th of March, 1870, the defendant and Waterman both being present at the time; he was then taken to a magistrate’s office by the policeman, accompanied by the defendant and Waterman; the officer at the time had no warrant for his arrest, and no warrant for that purpose had then been issued; Water ³⁸³ man then made a statement or charge against the plaintiff, as to his having obtained a grey horse from the defendant; the defendant was then questioned in reference to it, both by the magistrate and Waterman, whom the magistrate regarded as defendant’s counsel, and the defendant then made oath to the truth of the facts he had testified to, and the plaintiff was then committed to jail, under a warrant of commitment issued by the magistrate in the usual form, charging him with obtaining from John S. Stansbury, a grey horse under false pretences ; he remained in jail until the 16th of March, when he was released on bail, and at the following May Term of the Criminal Court was discharged, upon request of the grand jury, who had first summoned, sworn and examined the defendant and his son, who had been returned by the magistrate as witnesses for the State. There was evidence offered on the part of the plaintiff tending to show that this arrest and imprisonment was directly caused or procured by the defendant,' — that he was in fact the originator of the prosecution, and the plaintiff’s prayers leaving it to the jury to find that the prosecution was instituted, or caused, or procured to be instituted by the defendant, are based on that view of the testimony.

There was however, evidence offered on the part of the defendant tending to show that his agency or participation in the matter was not that of an originator of the proceedings, nor was it necessary he should have been, in order to make him liable in this action provided the case was in other respects made out against him. Two persons may be parties to an arrest and imprisonment, and both be liable; one maybe the active originator and promoter of the prosecution, and the other may voluntarily aid and assist therein, either by direct personal participation, or by instigation and advice. While mere passive knowledge and consent to the acts of another, is not sufficient to render a party liable, ³⁸⁴ (Gilbert vs. Emmons, 42 Ill., 143 ,) yet voluntary aid and assistance undoubtedly will. The first prayer of the appellee in Cooper vs. Utterbach, approved by this Court, was to the effect, that if the jury found from the evidence that the defendant aided and assisted in procuring the arrest and prosecution of the plaintiff', and aided and contributed to said prosecution, then he is liable to' be sued by the plaintiff in this action, provided, the jury under the instructions of the Court, shall find the other facts necessary to render him so liable.

So, in Cotton vs. Huidekoper, 2 Penna. Rep., (Penrose & Watts,) 143, the Court state what is unquestioned law, “if the defendant participated voluntarily in the prosecution of the plaintiff and it was carried on with his countenance and approbation. he is liable in damages, whether there wére others who were concerned in it or not.” The evidence in this case clearly shows that the defendant participated in the prosecution, at least to the extent of giving it voluntary aid and assistance. For assuming the police officer was called in and directed to arrest the plaintiff by Mr. Waterman acting upon his own volition, stilLthe defendant had been present at the previous interview, as