Duckwall v. Davis

• Decision Date: 18 January 1924
• Docket Number: 23,884
• Citation: 142 N.E. 113,194 Ind. 670
• Parties: Duckwall v. Davis
• Court: Indiana Supreme Court

142 N.E. 113

194 Ind. 670

Duckwall v. Davis

No. 23,884

Supreme Court of Indiana

January 18, 1924

Rehearing Denied June 24, 1924.

From Hendricks Circuit Court; Zimrie E. Dougan, Judge.

Action by Henry P. Davis against Herbert R. Duckwall and others for malicious prosecution. From a judgment for plaintiff against the named defendant, he appeals.

Reversed.

Eph Inman, Otis E. Gulley and Urban C. Stover, for appellants.

Clarence E. Weir, Charles W. Richards, George W. Brill and Baldwin & Curtis, for appellee.

Ewbank C. J. Myers, J., concurs.

OPINION

Ewbank, C. J.

Appellee sued appellant and two others for damages for alleged malicious prosecution, and recovered a verdict and judgment for $ 10,000 against appellant alone. Overruling the motion for a new trial is the only error assigned. The complaint alleged that the defendant Zenite Metal Company was a corporation engaged in manufacturing (among other things) mouldings stamped out of metal and filled with lead for use in finishing automobile bodies; that appellant was the president, and his codefendant Bates was the secretary of said company; that plaintiff lived in the city of New York, and was engaged in the manufacture and sale of lead filled mouldings by a secret process originated and owned by him; that at the request of defendants plaintiff came to Indianapolis for the purpose of perfecting arrangements with defendants to enter their employ in manufacturing and selling for them lead filled mouldings under plaintiff's said secret process; that he commenced work for the defendant company and continued in its service two or three weeks, when he returned to New York because of his inability to agree with defendants on a contract for permanent and continuous employment, and because of the illness of his family back there; that having tried, without success, to induce plaintiff to return to Indianapolis and continue in said employment, defendants maliciously and without probable cause and by means of false testimony submitted and given by them to the grand jury, caused two indictments against plaintiff to be returned in the criminal court of Marion county, Indiana, which charged that plaintiff had feloniously stolen two described checks of the value of $ 50, and $ 50 in money, and had feloniously embezzled $ 50 in money, each item so charged to have been taken being alleged to have been the property of said company; that by means of a warrant issued thereon and extradition proceedings plaintiff was caused to be arrested and imprisoned for a week in New York, and brought from there to Indianapolis and placed in jail where he remained until released on bail in the sum of $ 1,000, the next day; that more than three months later plaintiff was tried on said charges and was acquitted; that plaintiff was put to great expense for attorneys and for traveling between Indianapolis and New York, and sustained humiliation, disgrace and discomfort, and was damaged $ 10,000 by said wrongful acts. The answer was a denial, and a second paragraph alleging that all which defendants did was done on the advice of a reputable and competent practicing attorney to whom they made a full statement of the facts, in good faith and for the honest purpose of being advised as to the law in relation to the alleged offense; also special denials of having acted with malice, and of having presented any false testimony to the grand jury were pleaded. The reply was a general denial.

There was no evidence that appellant appeared in person before the grand jury that returned the indictments against plaintiff (appellee), but the undisputed evidence of witnesses called by both sides was that except for some papers brought to the grand jury by an attorney who had visited plaintiff in New York in the interest of the Zenite Metal Company, and who was shown to have received fees from it for that and other special employments by the company as its attorney, and who testified that when he went to see plaintiff in New York he went "for Mr. Duckwall" (appellant), the testimony of said attorney was the only evidence heard by the grand jury. It also appeared without dispute that this attorney was the deputy prosecuting attorney in charge of the grand jury at the time the indictments were returned, and that the papers referred to were from the files of the Zenite Metal Company, some of them being letters and telegrams by plaintiff addressed to said company, some to plaintiff on behalf of that company, written by its secretary, others on its behalf written by appellant, as its president, and one that purported to be from appellant, individually. To establish liability on the part of appellant, the plaintiff relied on evidence by which he sought to raise an inference that the deputy prosecuting attorney was the attorney and agent of appellant, and by appellant's authority procured the indictments to be returned, and that acting for appellant he concealed part of the material facts, and so manipulated the others in presenting them as to give the grand jurors a wholly false understanding of the case, and that appellant thereafter ratified and adopted all that had been so done. Appellant insists that there was no evidence tending to prove that he had anything to do with the investigation by the grand jury or the return of the indictments, or otherwise to prove the allegation in the complaint that the defendants (including appellant) "by means of false testimony submitted and given and caused to be submitted and given by them to the grand jury * * * caused and procured said grand jury to return two certain indictments against this plaintiff." That the indictments were returned was clearly proved, without dispute, and appellant testified that he had nothing to do with instituting the prosecution, that he counselled against it, and did not know of it until after plaintiff had been indicted. It was also proved without dispute that there was some agreement that a sum of money should be advanced by the Zenite Metal Company to plaintiff to pay the cost of bringing his family to Indianapolis, and that he received money from the company in excess of his wages to the amount of about $ 50 which he did not return on going back to New York.

The facts which must be established in order for plaintiff to be entitled to recover were: (1) that appellant instituted the prosecution or caused it to be instituted; (2) that he acted maliciously in so doing; (3) that there was no probable cause for instituting it; and (4) that the prosecution had terminated. Bitting v. Ten Eyck (1882), 82 Ind. 421, 423, 42 Am. Rep. 505; Johnson v. Brady (1915), 60 Ind.App. 556, 559, 109 N.E. 230.

"The fact that an indictment was returned by the grand jury was in itself presumptive evidence of probable cause, though subject to be rebutted by proof that it was induced by false testimony or other improper means. Terre Haute, etc., R. Co. v. Mason, supra; Scotten v. Longfellow (1872), 40 Ind. 23, 27; 19 Am. & Eng. Ency. of Law (2d ed.) 663." Miller v. Willis (1920), 189 Ind. 664, 670, 128 N.E. 831.

Assuming, without deciding, that there may have been evidence fairly tending to prove each material element of plaintiff's case, as well as evidence to the contrary, we proceed to the examination of the reasons assigned for asking a new trial.

The giving of each of certain instructions and the refusal to give each of certain others were specified as reasons for a new trial. Appellee insists that no question is presented by these specifications because the instructions were not incorporated in a bill of exceptions, and the attorneys and judge did not indorse thereon statements indicating which were given and which refused, and what exceptions were taken, in compliance with the statutes (§§ 560, 561 Burns 1914, § 535 R. S. 1881, Acts 1907 p. 652) which authorize exceptions to be noted by making such memoranda. But the act of 1907 also provides that--"All instructions requested, whether given or refused, and all instructions given by the court of its own motion, shall be filed with the clerk of the court at the close of the instruction of the jury. Exceptions to the giving or refusing of instructions may be taken * * * and (Our italics) the same may be taken orally and entered upon the record or minutes of the court, * * *. All instructions requested as herein provided, whether given or refused, and all instructions given by the court of its own motion, together with all exceptions taken to the giving or refusing of instructions as herein provided, and all entries upon the minutes or records of the court in respect to such instructions and exceptions, shall be a part of the record without any bill of exceptions, and as such may be included in the transcript on appeal." § 561 Burns 1914, supra.

Exceptions to the giving of the instructions complained of seem to have been taken in the case at bar in strict compliance with the provisions of the statute above quoted. The record recites that plaintiff tendered instructions numbered 1 to 8 inclusive, that the court gave of said tendered instructions Nos. 1, 2, 3, 4, 5, and 6, and refused to give the others, and that to the giving of each of those so given each one of the defendants at the time excepted; that the defendants tendered instructions numbered 1 to 17, inclusive, of which the court gave Nos. 6, 8, 9, 14, 15 and 17, and refused to give each of the others; and that the court gave of its own motion instructions numbered from 1 to 13, inclusive, to the giving of each of which severally the defendants severally excepted at the time; that all the instructions so requested by plaintiff and defendants, respectively, were signed by the court and ordered filed and were filed, and were as follows (setting them out);...