Lytton v. Baird

• Decision Date: 24 January 1884
• Docket Number: 10,654
• Citation: 95 Ind. 349
• Parties: Lytton v. Baird
• Court: Indiana Supreme Court

95 Ind. 349

Lytton v. Baird

No. 10,654

Supreme Court of Indiana

January 24, 1884

Petition for a Rehearing Overruled May 14, 1884.

From the Monroe Circuit Court.

J. F Pittman, J. R. East, J. H. Louden and R. W. Miers, for appellant.

G. W Grubbs, J. W. Buskirk and H. C. Duncan, for appellee.

OPINION

Colerick, C.

This was an action for malicious prosecution brought by the appellee against the appellant. The complaint, in substance, averred that, on the 1st day of February, 1881, the appellant maliciously, and without probable cause, procured the grand jury of Monroe county to indict the appellee upon a charge of perjury; that he was arrested and imprisoned, and afterward gave bond for his appearance in the Monroe Circuit Court to answer said charge; that subsequently such proceedings were had in said cause that he was fully and finally discharged from said prosecution; that said charge was wholly false; that he was compelled to expend and become liable for a large amount, to wit: $ 1,000, in employing counsel and preparing for the defence of the case, and that he was damaged in the sum of $ 5,000, for which he demanded judgment. To this complaint an answer of general denial was filed, and the issues formed were submitted to a jury for trial, who returned a verdict in favor of the appellee for $ 1,000. A motion for a new trial was made and overruled, to which ruling the appellant excepted, and thereupon judgment was rendered against him, from which he appeals, and assigns as the only error for the reversal of the judgment the overruling of his motion for a new trial.

The reasons assigned for a new trial were:

1. That the verdict was contrary to law.

2. That the verdict was not sustained by sufficient evidence.

3. That the court erred in giving, on its own motion, instructions numbered from one to twelve, inclusive.

4. That the court erred in refusing to give the special instructions asked by the appellant.

5. That the court erred in admitting certain evidence, recited in the motion.

6. That the damages assessed were excessive.

7. That the court erred in allowing certain evidence, referred to in the motion, to be introduced.

The appellant's counsel, with commendable zeal and ability, review the evidence rendered on the trial, and insist that the judgment should be reversed because of the insufficiency of the evidence to sustain the verdict. We have carefully examined the record, and find that as to every material fact involved in the case opposing evidence was introduced, and that a conflict therein as to each fact exists. Adhering to a long established and inflexible rule of this court, we will not, in view of its conflicting nature, attempt to review the evidence, so as to reconcile, if possible, its conflict, or determine its preponderance, which was peculiarly and properly the province of the jury who tried the case, and who possessed the opportunity and advantage, which we do not enjoy, of seeing the witnesses, and observing their conduct and demeanor while testifying, which so often furnish the safest and most satisfactory means of testing the credibility of the witnesses and determining the weight to be given to their evidence. It is sufficient to say that the evidence strongly tends to sustain all the material facts in the case, and for that reason we can not disturb the verdict on the weight of the evidence.

The third reason assigned for a new trial related to the instructions that were given to the jury by the court on its own motion. The ones criticised and discussed by the appellant are those numbered three, four, five, six, seven, nine and eleven.

The objection presented to the third instruction is, that it misstated the issues to be tried by the jury, in this, that the appellant was not compelled, in order to make his defence available, to prove, as indicated in the instruction, that the appellee was guilty of the crime with which he was charged, but was only required to show that reasonable cause existed for making the accusation against him. This instruction, considered alone, unaided by other instructions, was erroneous, and unless it can be and is construed with reference to and in connection with other and subsequent instructions upon the same subject that were given by the court, and to which we will hereafter refer, the judgment must be reversed. In the case of Scotten v. Longfellow, 40 Ind. 23, this court said, "The guilt or innocence of the party charged is not the gist of the action. Probable cause may exist in the absence of guilt. * * The falsity of the charge and probable cause are very different things."

The question of the presence or absence of probable cause does not depend upon the guilt or innocence of the accused, or upon the fact whether or not a crime has been committed. Hays v. Blizzard, 30 Ind. 457; Carl v. Ayers, 53 N.Y. 14; Baldwin v. Weed, 17 Wend. 224; Bacon v. Towne, 4 Cush. 217; Thompson v. Lumley, 50 How. Pr. 105; Moore v. Sauborin, 42 Mo. 490; Gallaway v. Burr, 32 Mich. 332. Want of probable cause and malice are the issue in the cause, and it makes no difference as to the innocence of the accused. Skidmore v. Bricker, 77 Ill. 164; Brennan v. Tracy, 2 Mo. Ap. 540.

But, in this case, the court, in its sixth instruction, stated that although the accused might have been innocent of the offence with which he was charged, "still the defendant in this case would not be liable to the plaintiff for any damages on account of the indictment and prosecution referred to, unless, 1st. He caused and procured it to be instituted. 2d. He did this without probable cause. * * * The plaintiff does not make out his case by satisfying you that he did not commit the perjury charged; and, further, that he was prosecuted at the procurement of the defendant; he must go further still and show that the defendant did this without probable cause."

In its seventh instruction the court repeated the statement that the plaintiff must show the want of probable cause, which was defined by the court, and in its ninth instruction stated to the jury, if "you determine that he (the defendant) did cause or procure the indictment to be returned and the prosecution to be instituted, then you will pass to the third and last inquiry, Did he do this without probable cause? If you find that defendant did cause and procure said indictment and prosecution to be instituted, but that he had probable cause to do so, then you should find for the defendant."

We think that the sixth, seventh and ninth instructions, above referred to, are to be considered in connection with the third instruction, to which the objection is made. As stated in White v. Beem, 80 Ind. 239, "It is settled by repeated decisions that the instructions must be taken as a whole; and if, so taken, they express the law correctly, they will be upheld." See, also, Branstetter v. Dorrough, 81 Ind. 527; Walker v. Heller, 73 Ind. 46.

The same objection is urged against the fourth instruction. The observations which we have made as to the third instruction are pertinent, and apply with equal force to this instruction.

The objection presented by the appellant to the fifth instruction is that it stated to the jury that it was immaterial where the note mentioned in the fourth instruction was executed. The fourth and fifth instructions, like others to which we have referred, are to be construed and considered together, as they involve the same subject-matter, and, in fact, constitute a single instruction. The court, after informing the jury that the issue tried in the action upon the note (being the action in which it is said that the appellee, as a witness, committed perjury) was, whether or not Mrs. Lytton was induced to execute the note by fraud or false representations, stated that if the jury found that the appellee on that issue testified falsely, they should find for the appellant; and in that connection the court, in its fifth instruction, stated that "The material matter of inquiry in the former trial was not where the note was executed, but was, Did Mrs. Lavina Lytton in fact execute it in good faith and without fraud or false representations? It is not material whether it was done at Dr. Walker's or at Gosport."

To determine the correctness of this instruction, it is necessary to state briefly the facts relating to the execution of the note. It appears, by the evidence, that one Ettie Allen, a daughter of Mrs. Lytton, being indebted to Fahnley & McCrea, made an arrangement with their agent the appellee, by which she was to execute to them, for their claim, her note, with Mrs. Lytton as surety, which note was executed. Afterwards, in an action which was brought upon the note, Mrs. Lytton filed an answer, averring that the note had been procured from her, at the house of Dr. Walker, by fraud, and recited therein the facts constituting the alleged fraud. On the trial of said action she testified, in substance, that the facts averred in her answer were true, but on the trial of this action she stated that the note was executed by her at the store of Ettie Allen, in Gosport, and not at the house of Dr. Walker, as previously stated by her, and explained her former contradictory statement as to the place of its execution, by saying that she had been induced to so testify by her son (the appellant) and others, who told her that she must do so in order to save her property. The appellee, as a witness in said former action, denied the statement then made by Mrs. Lytton that the note was executed at Dr. Walker's, and asserted that it was executed at the store of Ettie Allen at Gosport, and that no fraud was practiced, or false representations made, to induce her to execute it, and that it was fully explained to and understood by...