Stivers v. Old Nat. Bank in Evansville, 169A5

• Citation: 264 N.E.2d 339,148 Ind.App. 196
• Decision Date: 09 December 1970
• Docket Number: No. 169A5,No. 1,169A5,1
• Parties: , 8 UCC Rep.Serv. 721 John C. STIVERS, Fred Hensler, d/b/a Quality Motors, Appellant, v. OLD NATIONAL BANK IN EVANSVILLE, Appellee. OLD NATIONAL BANK IN EVANSVILLE, Cross-Appellant, v. John C. STIVERS, Fred Hensler, d/b/a Quality Motors, Cross-Appellee
• Court: Court of Appeals of Indiana

Page 339

264 N.E.2d 339

148 Ind.App. 196, 8 UCC Rep.Serv. 721

John C. STIVERS, Fred Hensler, d/b/a Quality Motors, Appellant, v. OLD NATIONAL BANK IN EVANSVILLE, Appellee.

OLD NATIONAL BANK IN EVANSVILLE, Cross-Appellant, v. John C. STIVERS, Fred Hensler, d/b/a Quality Motors, Cross-Appellee.

No. 169A5.

Appellate Court of Indiana, Division No. 1.

Dec. 9, 1970.

Rehearing Denied Jan. 27, 1971.

Robert D. Schuttler, Evansville, for appellant.

John L. Carroll, Edwin W. Johnson & Charles C. Griffith, Evansville, Johnson & Carroll, Evansville, of counsel for appellee.

CARSON, Judge.

This was a civil action brought originally by appellee, Old National Bank in Evansville, (Bank), against appellant-John C. Stivers and one Fred Hensler to enforce the collection of an unpaid commercial check which had been returned for insufficient funds by the Bank upon which it was drawn. To this complaint defendant-appellant, Stivers, filed general denial.

In the same cause, appellant-Stivers filed a counterclaim alleging malicious prosecution against the plaintiff-Bank for damages arising out of a criminal charge of theft filed in the Evansville City Court by plaintiff-Bank against appellant-Stivers in connection with the nonpayment of the same check, and prior to the adjudication of the civil action.

Trial by jury was had on plaintiff-Bank's complaint for nonpayment of the check and on the defendant-Stivers' counter-claim against the plaintiff for malicious prosecution.

At the conclusion of plaintiff-Bank's evidence on its bad-check charge and the evidence of appellant-Stivers on his counter-complaint, the court sustained a motion by the plaintiff-Bank for a directed verdict in its favor and against defendant-appellant on his counter-complaint for malicious prosecution. On its own motion the court directed the jury to find for defendant-Stivers and against plaintiff-Bank on plaintiff's complaint on the check.

Both parties to the action timely filed motions for a new trial with respect to the directed verdicts entered against them. The motions for new trial were overruled and both parties appeal from the respective judgments.

The circumstances of this case are as follows: Appellant-Stivers was associated with Fred Hensler, owner of Quality Motors in Evansville, Indiana. Stivers acted as manager of the automobile sales lot, selling and buying cars; and he had authority to sign all checks. On July 10, 1966, Stivers gave Hensler several blank checks to pay bills after being assured by Hensler that adequate funds existed to cover the withdrawals. One of the blank checks was given to appellee-Bank to pay off the balance owed on an automobile. The check was returned because of insufficient funds on or about August 12, 1966. Appellee-Bank issued notification to both Stivers and Hensler on September 2, 1966, that the Bank would prosecute under Acts 1963 (Spec. Sess.), ch. 10, § 10, p. 10, Ind.Stat.Anno., § 10-3037, Burn's 1956 Repl., if the amount of the check was not paid within 30 days. Appellee-Bank also threatened civil suit within one week if sufficient funds were not forthcoming.

The amount of the check was not paid. Appellee-Bank first instituted civil suit against Stivers and Hensler and, later, on October 3, 1966, filed an affidavit against Stivers charging him with the crime of theft. The criminal charge was terminated in favor of appellant-Stivers on December 13, 1966, by nolle prosequi on the part of the county prosecutor.

Both the appeal of John C. Stivers and the assignment of cross-errors by the Bank present us with the question of whether or not the trial court was justified in granting a directed verdict.

The principles which govern the granting of a motion for a directed verdict and peremptory instruction by a trial court were cogently set out in Whitaker, Admr. v. Borntrager (1954), 233 Ind. 678, 680, 122 N.E.2d 734. Under Whitaker a peremptory instruction to the jury to find for a defendant is justified only '(w)hen there is a total absence of evidence or legitimate inference in favor of the plaintiff upon an essential issue; or where the evidence is without conflict and is susceptible of but one inference and that inference is in favor of the defendant.' (Citing authorities.) (Emphasis supplied.)

Whitaker further held, at 680--681 of 233 Ind., at 735 of 122 N.E.2d, as follows:

'When there is some evidence or legitimate inference supporting each material allegation of the complaint, the court will not weigh the conflicting evidence or inferences but will consider only the evidence and inferences that are most favorable to the party against whom the motion for a peremptory verdict is directed. (Citing authorities.)

'In determining whether a peremptory instruction should be given the court must accept as true all facts which the evidence tends to prove and draw, against the party requesting such instruction, all inferences which the jury might reasonaby draw.' (Citing authorities.)

If, on review of the record, the Appellate Court finds any evidence or legitimate inferences which support the theory of the party appealing, the trial court must be reversed. This court will not weigh the evidence; we look solely to the evidence and inferences most favorable to the party against whom the directed verdict was entered. Stover v. Fechtman (1966), 140 Ind.App. 62, 222 N.E.2d 281.

We now turn to a consideration of the particular directed verdicts here involved. Appellant-Stivers in his motion for a new trial on his cross-complaint against appellee-Bank assigns the following errors:

1. The verdict of the jury is contrary to law.

2. Error of law occurring at the trial, as follows:

(a) The court erred in sustaining the plaintiff's motion, made at the close of defendant's evidence to instruct the jury to return a verdict for the plaintiff on defendant's cross-complaint.

(b) The court erred in giving to the jury at the request of the plaintiff an instruction to return a verdict for the plaintiff on defendant's cross-complaint.

The plaintiff in an action for malicious prosecution must prove the following: That defendant instituted a prosecution or caused it to be instituted; that defendant acted maliciously and without probable cause; and that the prosecution was terminated in plaintiff's favor. Cassidy v. Cain (1969), Ind.App., 251 N.E.2d 852 (transfer denied); Dwyer v. McClean (1961), 133 Ind.App. 454, 175 N.E.2d 50 (transfer denied).

Appellant-Stivers argues, at page 37 of his brief, that '(t)he appellant's evidence disclosed a lack of probable cause or the existence of malice, * * *.' (Emphasis supplied.) It is clear from the case law that all of the aforementioned elements of malicious prosecution do not exist as alternatives. We agree with appellant-Stivers' argument that malice may be implied from lack of probable cause, and that the question of malice is for the jury. Pontius v. Kimble (1914), 56 Ind.App. 144, 104 N.E. 981. Lack of probable cause, however, cannot be implied from malice; McCasland v. Kimberlin (1885), 100 Ind. 121; nor is it a question for the jury. Cleveland, etc. R. Co. v....