Bangert v. Hubbard

• Decision Date: 19 June 1957
• Docket Number: No. 18600,18600
• Citation: 237 Ind. 5,143 N.E.2d 285
• Parties: Harry P. BANGERT, Appellant, v. Carl E. HUBBARD, Appellee.
• Court: Indiana Supreme Court

Page 285

143 N.E.2d 285

237 Ind. 5

Harry P. BANGERT, Appellant, v. Carl E. HUBBARD, Appellee.

No. 18600.

Supreme Court of Indiana.

June 19, 1957.

Petition for Rehearing Dismissed June 28, 1957.

Dennis & Dennis, Richmond, Meeks Cockerill, Winchester, for appellee.

On Petition to Transfer

Petition to transfer denied.

LANDIS, Judge (dissenting).

I am unable to agree with the opinion of the Appellate Court reported in, Ind. App., 126 N.E.2d 778, reversing appellee's-plaintiff's judgment upon the second paragraph of complaint for damages for malicious prosecution.

The second paragraph of appellee's-plaintiff's complaint, appearing at page 586 of 127 Ind.App., and at page 781 of 126 N.E.2d, among other things, alleged:

'7. That plaintiff by reason of the foregoing suffered and still suffers great mental anguish and plaintiff also suffered physical arrest and detention and discomfort and the plaintiff's reputation has been besmirched an blackened and has been grievously damaged by the wrongful action of the defendant as aforesaid and by the said offense so maliciously and wrongfully charged against him without probable cause, all to the plaintiff's damage in the sum of Twenty-five Thousand Dollars ($25,000.00).'

The Appellate Court's opinion says a search of the record reveals the only evidence of damages proved was that of $100 which appellee-plaintiff paid for counsel fee growing out of his arrest on appellant's blackmail charge. The opinion mentions there were articles in the newspaper as to appellee's-plaintiff's arrest as well as to the subsequent dismissal of the charge, but the court's opinion states at page 586 of 127 Ind.App., and at page 782 of 126 N.E.2d: '* * * we find no evidence or attempt to prove damages to the appellee resulting from the publication thereof. * * *' That witnesses testified his '* * * reputation was good * * *' and no evidence was introduced to show appellee-plaintiff had '* * * suffered loss of reputation or humiliation, embarrassment or suffering * * * as the result of the charge of blackmail having been filed.'

The Appellate Court reversed the judgment of the lower court, and held the jury's verdict of $10,500 for malicious prosecution was excessive.

Contrary to the Appellate Court's opinion requiring specific evidence of damage to reputation, the Restatement of the Law, Torts, § 670, p. 428, 429, Vol. III, Ch. 29, states 'a. The institution of criminal proceedings necessarily carries with it a defamatory accusation of criminal conduct, and the rules which determine the right to recover for the resulting harm to reputation and distress are the same as those applicable in actions for defamation, * * *. Thus, the plaintiff may recover for such injury to his reputation as normally results from the publication of the accusation without proving that his reputation has been lowered. So, too, a plaintiff may recover damages for the distress which normally results from being prosecuted for a crime without proving that he has suffered any emotional disturbance. As in defamation, damages of the kind above described are called general damages. However, the amount of harm to the reputation of the accused and the extent of his emotional disturbance are determined by the gravity of the offense charged against him in the criminal proceedings. The harm done to his reputation by criminal proceedings for an atrocious crime and the distress caused by an unjustified accusation thereof is obviously greater than that caused by a prosecution for some trivial offense.'

Appellant, in opposing transfer of this cause to the Supreme Court, contends the rule not requiring specific evidence of damage to reputation set forth in the Restatement, is inapplicable in Indiana. It happens, however, that this court as long ago as 1892 recognized the latitude to be accorded jury verdicts for damages to reputation in malicious prosecution and libel and slander cases. There this court affirmed a $6,500 judgment for malicious prosecution in Evansville & T. H. R. Co. v. Talbot, 1892, 131 Ind. 221, 223, 29 N.E. 1134; 40 A.L.R. 312; 35 A.L.R.2d 312 note, 324 note, and said:

'The appellants also insist that excessive damages were awarded. The verdict was for $6,500. Courts seldom disturb verdicts on the ground that compensation for an injury to character has been estimated by too high a standard. In cases of this character a new trial will not be granted on the ground of excessive damages unless they are so outrageous as to induce the belief that the jury acted from prejuduce, partiality or corruption. Guard v. Risk, 11 Ind. 156; Alexander v. Thomas, 25 Ind. 268; Crocker v. Hadley, 102 Ind. 416, 1 N.E. 734 . An action for malicious prosecution, like actions for libel or slander, involves the question of compensation for an injury to character. We can not disturb the verdict on that ground.'

The Guard v. Risk, Alexander v. Thomas, and Crocker v. Hadley cases cited, supra, were libel and slander cases, and the rule they are cited for that 'courts seldom disturb verdicts on the grounds that compensation for an injury to character has been estimated by too high a standard' has never been questioned in this state. Evansville & T. H. R. Co. v. Talbot, supra, was later followed in the malicious prosecution case of Indiana Bicycle Co. v. Willis, 1897, 18 Ind.App. 525, 530, 48 N.E. 646. The opinion of the Appellate Court in the case before us not only does not cite any Indiana cases involving malicious prosecution, but completely ignores the widely cited ...