Benson v. Bacon

• Decision Date: 20 December 1884
• Docket Number: 11,981
• Citation: 99 Ind. 156
• Parties: Benson v. Bacon
• Court: Indiana Supreme Court

99 Ind. 156

Benson v. Bacon

No. 11,981

Supreme Court of Indiana

December 20, 1884

From the Harrison Circuit Court.

Judgment reversed.

B. P Douglass and S. M. Stockslager, for appellant.

C. W Cook, for appellee.

OPINION

Elliott J.

It is established by many decisions of this court that a judgment will not be reversed on the ground that a motion to strike out a part of a pleading was improperly overruled.

The first paragraph of the complaint seeks to recover for injuries resulting from an assault and battery alleged to have been committed upon the appellee by the appellant. The objection urged to this paragraph of the complaint is that it does not employ the word "unlawful" in charging the assault and battery. The approved precedents do not contain the word unlawful or its equivalent, and we are not willing to hold the complaint bad because of the omission to use this term. 2 Works Pr. 645; 2 Chitty Pl. (13 Am. ed.) 852; Bullen & Leake Prec. 411; Oliver Prec. 719; 1 Estee Pl. 560. It is true that in indictments it is necessary to use the term unlawful or its equivalent, but it is well known that there is an essential difference between civil actions and criminal prosecutions. Howard v. State, 67 Ind. 401. If, however, we are in error in yielding to the authority of the precedents which have so long ruled pleaders, we should still be compelled to hold the pleading good. The reason for this is, that the facts specifically pleaded show that the assault and battery was an unlawful one. Bloom v. Franklin Life Ins. Co., 97 Ind. 478; Norris v. Casel, 90 Ind. 143.

The second paragraph of the complaint alleges as a cause of action that the defendant instituted a malicious prosecution against the plaintiff without probable cause. The defect which counsel suppose exists in this paragraph is that it does not state the facts constituting the want of probable cause. In our opinion the defect is an imaginary and not a real one. The want of probable cause is a fact, and it is always sufficient to state the facts without pleading the evidence which proves the fact. Scotten v. Longfellow, 40 Ind. 23; 2 Works Pr. 646; 2 Chitty Pl. 616; Adams v. Lisher, 3 Blackf. 241 (25 Am. Dec. 102). It would be impracticable, and indeed almost impossible, for a plaintiff to specifically set forth the facts constituting a want of probable cause, for, owing to the negative form of the fact, it would be necessary for him to anticipate and answer every conceivable state of facts that might constitute probable cause. When the defendant justifies the case is different, for, as he pleads affirmative facts, known to him and upon which his acts were based, he can set them out affirmatively, and it seems to be the rule that where he pleads affirmatively and by way of justification, he must plead the facts specially. Brown v. Connelly, 5 Blackf. 390. The cases which counsel cite to sustain their attack upon the complaint, Adams v. Lisher, supra, and Hays v. Blizzard, 30 Ind. 457, are against and not for them. In the latter case the allegation in the complaint upon this point was not stronger than in the present, and it was held that the demurrer was properly overruled.

The fourth instruction given upon the request of the plaintiff reads thus: "The jury are instructed that if they believe from the evidence that the prosecution of the plaintiff as shown by the evidence was not undertaken by the defendant for a public purpose, then the defendant had not probable cause."

In support of this instruction the appellee quotes from the text of a standard author the...