Cooper v. Utterbach

• Decision Date: 30 January 1873
• Citation: 37 Md. 282
• Parties: EDWARD K. COOPER v. CHARLES H. UTTERBACH.
• Court: Maryland Court of Appeals

37 Md. 282

EDWARD K. COOPER v. CHARLES H. UTTERBACH.

Court of Appeals of Maryland

January 30, 1873

Appeal from the Superior Court of Baltimore City.

The statement of the case as contained in the opinion of the court, together with the arguments of counsel, will suffice to indicate the legal principles involved and the points decided. Two exceptions were taken by the plaintiff-- the first of which is stated in the opinion of the court.

Second Exception.--The plaintiff presented the following prayers:

1. If the jury find from the evidence that the defendant aided and assisted in procuring the arrest and prosecution of the plaintiff in the Criminal Court, and aided and contributed to said prosecution, then the defendant 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 the said defendant so liable.

2. If the jury shall find that the plaintiff was indicted, tried and acquitted in the Criminal Court of Baltimore City, on the charges set forth in the record of that court, offered in evidence, and shall find that the defendant was connected with said prosecution, as set forth in the plaintiff's first prayer, and shall further find that there were no circumstances connected with the transaction out of which the said criminal prosecution arose, which would induce a reasonable, dispassionate man to believe the plaintiff to have been guilty of the charge made against him, and to induce such a man to have undertaken such a prosecution from public motives, then there was no probable cause for said prosecution, and the jury may infer, in the absence of sufficient proof to satisfy them to the contrary, that said prosecution was malicious in law.

3. If the jury shall find that the prosecution was without probable cause, as the same is defined in the second prayer, and shall further find that said prosecution was instigated or set on foot by the defendant's procurement, rashly and recklessly, or that it was designed by the defendant to accomplish any private end of his own, by means of said prosecution, then the jury may find that said prosecution was malicious, notwithstanding they may believe that the defendant had no personal ill-will towards the plaintiff, and the plaintiff is entitled to recover.

4. If the jury shall find that there were any circumstances connected with or growing out of the transaction out of which the prosecution arose, existing at the time the indictment was procured, which might induce a reasonable and dispassionate man to believe that the plaintiff was guilty of said charge, and to induce such a man to undertake the prosecution of the plaintiff for public motives; yet, if the jury shall find that before the arrest and trial of the plaintiff, the defendant had received additional information sufficient to satisfy the mind of a reasonable and dispassionate man that the plaintiff was not in fact guilty of said charges, and if they shall further find that notwithstanding such information, the defendant afterwards procured the arrest and prosecution of the plaintiff, and endeavored to procure his conviction under said indictment then in the absence of sufficient proof to the contrary, the jury may find that said prosecution was malicious, and the plaintiff is entitled to recover.

5. If the jury find for the plaintiff, the measure of damages is such an amount as the jury may find will compensate the plaintiff for his actual outlay and expenses about his defense in the criminal trial, and for his loss of time and for the injury to his feelings, person and character, by his imprisonment and prosecution; and the jury may also, if they find said prosecution to have been pursued by the defendant for his private ends, and with reckless disregard to the rights of the plaintiff, give such punitive damages as they may think proper to award for such conduct on the part of the defendant.

The defendant offered six prayers, the first and third of which were granted by the court (Dobbin, J., )and the second and fourth were conceded by the plaintiff--the others were as follows:

5. That if they shall find that the defendant, in reference to the institution and prosecution of the criminal charge complained of, acted bona fide and without malice, under the professional advice and direction of his counsel, Colonel Mosby, believing such advice to be sound, he is not liable and the plaintiff cannot recover in this action, even although Colonel Mosby's advice may not have been sound and although, but for such advice, the defendant would have had no probable cause for his action.

6. That the questions decided between the plaintiff and the defendant, in the proceeding in Virginia, upon the bill filed by the defendant, of which the record has been read to the jury, are to be taken as finally settled and concluded between the parties, and no longer open to controversy, and the court having determined in that case that the transaction between the plaintiff and defendant, out of which said controversy and the criminal proceedings arose, and with which the present suit is connected, was altogether fair on the part of the defendant, and was not tainted by fraud or usury as the plaintiff in that case contended, it is no longer competent for the plaintiff to set up in argument or otherwise, or for the jury to find as an element of their verdict, that said transaction was otherwise than fair and honest on Cooper's part, as the said court has pronounced it.

The court granted the first, second, fourth and fifth prayers of the plaintiff, but rejected his third because of the absence of any sufficient evidence in the cause tending to show any design on the part of the defendant to accomplish any private end of his own, by means of the prosecution referred to in said prayer. The court rejected the fifth prayer of the defendant as offered, but granted the same with the words " concealing no material facts from him and" interposed between the words "Mosby" and "believing," in the fifth line of the prayer.

The court likewise rejected the sixth prayer of the defendant because whilst the legal validity of the claim of the defendant to be paid the $11,000, secured by the deed of trust to Rasin, is conclusively established by the decree in Virginia, and is not open to impeachment in this case, yet the facts and circumstances attending the original transaction, to the extent to which they may shed light upon the conduct and motives of the parties, in relation to the matters involved in this suit, are open to all fair analysis, comment and argument before the jury.

The defendant at the trial objected to the prayers of the plaintiff, because they were not only erroneous in point of law, but were without any sufficient legal evidence in the cause to support them.

The defendant also objected to the modification of his fifth prayer, because there was no sufficient legal evidence in the cause, of any such concealment as referred to in the said modification.

The court gave the following instruction of its own accord:

I instruct the jury, that "probable cause," as used in these instructions, 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.

Whereupon the defendant excepted to the granting of the first, second, fourth and fifth prayers of the plaintiff, and to the refusal of the court to grant his fifth and sixth prayers as offered, and to its modification of his fifth prayer, and also to its additional instruction granted of its own accord.

The verdict and judgment were for the plaintiff, and the defendant appealed.

The cause was argued before BARTOL, C.J., BOWIE, ALVEY and ROBINSON, JJ.

L. L. Conrad and S. Teackle Wallis, for the appellant.

First Exception.--The question to Colonel Mosby, the allowance of which was the subject of the first exception, ought to have been excluded. It was founded on a false assumption of what the witness had stated in chief, and it required him to explain something which he had not stated. It assumed that he had advised Cooper as to Utterbach's guilt, "with all the facts before him," and then asked him to recapitulate those facts, whereas he had proven that his opinion was based exclusively on the facts he had heard from Rasin and had found out for himself. He did not profess to have known "all the facts."

Besides (and this was the substantial objection to the question,) it was not pertinent to the issue, to inquire or prove upon what facts the witness had based his opinion, because, whatever they were, he had received none of them from Cooper. If Cooper had stated the facts to him, it would have been perfectly competent for the appellee to test Cooper's good faith, by ascertaining from the witness whether Cooper had told him all the facts, or the real facts. But, as Cooper never stated a single fact to him, and he advised Cooper, voluntarily, and without a word or inquiry from Cooper, directly or indirectly, on the subject, as was proven, and is not disputed, the relevancy of the question propounded is inconceivable. Whether Colonel Mosby had or had not found out all the facts, by his own inquiries, or by the information he derived from Rasin, had nothing to do with the case, because neither the good faith nor the professional accuracy of Colonel Mosby was in issue. The suggestion that when Mosby saw Cooper in person, the latter ought to have told him all the facts, and that the question to Mosby was proper, in order to find out whether or not he had done so, is susceptible of two obvious replies. In the first...