Dwyer v. McClean

• Citation: 133 Ind.App. 454,175 N.E.2d 50
• Decision Date: 19 May 1961
• Docket Number: No. 1,No. 19178,19178,1
• Parties: Vernon DWYER, Appellant, v. T. Sherman McCLEAN, Appellee
• Court: Court of Appeals of Indiana

Page 50

175 N.E.2d 50

133 Ind.App. 454

Vernon DWYER, Appellant, v. T. Sherman McCLEAN, Appellee.

No. 19178.

Appellate Court of Indiana, Division No. 1.

May 19, 1961.

Rehearing Denied June 22, 1961.

Dale & Dale, Indianapolis, for appellant.

John T. Davis, Seth S. Ward, Indianapolis, Scifres & Hollingsworth, Lebanon, for appellee.

RYAN, Judge.

This action was brought by the appellee against the appellant for damages for alleged malicious prosecution which arose out of the arrest of the appellee on a warrant issued by virtue of a criminal affidavit which was signed by the appellant and approved by the prosecuting attorney of Marion County, Indiana. No good purpose would be served by quoting or examining any portion of the testimony. It is enough to say that the evidence was in conflict. Trial was had by jury, which resulted in a verdict for the appellee, consistent judgment was rendered thereon, and from the overruling of his motion for a new trial the appellant appeals.

The appellant contends that the verdict of the jury in awarding damages in the amount of Thirteen Thousand Seven Hundred ($13,700.00) Dollars was excessive, and cites in support thereof Bangert v. Hubbard, 1957, 127 Ind.App. 579, 126 N.E.2d 778, 143 N.E.2d 285, 67 A.L.R.2d 395, in which case this court stated in 127 Ind.App. at page 589, 126 N.E.2d at page 782:

'We have examined appellee's authorities in which they seek to substantiate the amount of the verdict but we fail to find any case where the verdict for punitive damages was in such a large proportion to the compensatory damages as proven. Considering all the facts presented here, we believe it to be sound reasoning that the amount of punitive damages awarded by a jury must bear some reasonable proportion to the amount of compensatory damages.'

In an action for malicious prosecution the plaintiff may recover all damages which are the natural probable consequences of the malicious prosecution complained of. The plaintiff, if entitled to damages, may thus recover as compensatory damages the pecuniary loss which results directly from such prosecution. He may also recover as exemplary and punitive damages for the non-pecuniary losses if any have been sustained. Within this second class of damages are included the injuries to the plaintiff's reputation, since an accusation of a crime made under the pretense of bringing a person guilty of such crime before the bar of justice is made in an imposing and impressive manner and the reputation of the party so accused may have inflicted upon it a deeper and longer lasting injury than would be inflicted thereon if the same charges were uttered under other circumstances. Consideration can also be given in awarding such damages to the humiliation, embarrassment, mental suffering, physical pain, discomfort and inconvenience caused by such prosecution if the same are shown to be the direct and proximate results of the defendant's action. Further, if such prosecution arises from the instigation of criminal proceedings, the jury may also take into consideration the arrest and imprisonment suffered by the plaintiff. 34 Am.Jur., Malicious Prosecution, § 95, § 98.

For a verdict to be set aside on the ground of excessiveness, in this type of case the rule of Indiana is as follows:

'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 prejudice, 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.' Evansville and Terre Haute Railroad Company et al. v. Talbot, 1891, 131 Ind. 221, 223, 29 N.E. 1134.

However, the appellant argues that at the most the appellee showed pecuniary damages in the total amount of Three Hundred Seventy-five ($375.00) Dollars, and that therefore, following the above quoted provision in Bangert v. Hubbard, supra, the award of the jury is so disproportionate to the actual or compensatory damages allowed that such must be reversed. And well such might have been true in the Bangert case, supra, since 'There was no evidence of loss of earnings or that his standing with his employer was affected in any particular. Neither was there evidence that his social standing was affected; that he suffered loss of reputation or humiliation, embarrassment or suffering either mental or physical as the result of the charge of blackmail having been filed.' Bangert v. Hubbard, supra, 127 Ind.App. 587, 126 N.E.2d 782.

We do not have the same situation presented in the cause before us, as there was evidence to the effect that the appellee suffered loss of earnings, that his standing with his employer was affected, as was his social standing, and that he further suffered humiliation and a loss of reputation. Appellee testified that:

'This prosecution affected my employment at State Auto Association in that I did not get the first promotion I was in line for; people were a little cold where they had been friends.

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'Another man with less seniority was promoted ahead of me. First time that had been done.

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'Reports of the prosecution appeared in the Indianapolis newspapers. These papers are in state-wide circulation including the northern part of the state which is part of my territory. The agents of the companies read about it, mentioned the fact to me, and I was embarrassed.

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'It affected my friendships with people I knew and used to see socially. I didn't see them and if I did, they were cold'.

The elements which the jury or the trial court may consider in assessing the amount of punitive damages do not admit of any strict and specific proof, and we can foresee situations in criminal prosecutions where if the punitive damages were to be tied to such a proportionate rule grave injustices would be done. The measure of a man's character and reputation can hardly be measured by the amount of money he may have been required to expend in defending himself against such criminal action. In all actions for malicious prosecution an adjustment is required between two highly important social interests. The first of these is an interest in the efficient and just enforcement of criminal law, which requires aid to be given to private persons who help in such enforcement against any prejudice which arises from a determination of such prosecution in favor of the accused. Balanced against this is the right possessed by each individual to be protected against unjustifiable and oppressive criminal charges. An invasion of the latter may result in damage or injury to the character and reputation of the individual.

To paraphrase Snakespeare's 'Othello', 'He that filches from me my good name robs me of that which not enriches him and makes me poor indeed'. We cannot therefore say that as a matter of the law that the verdict of the jury was excessive.

The essential elements of a malicious prosecution action are:

'* * * the prosecution of some legal proceedings by, or at the instigation of, defendant, the absence of probable cause to do so, malice in instituting the proceedings, the termination of such proceedings in plaintiff's favor, and damages sustained by plaintiff.' 19 I.L.E. Malicious Prosecution, ch. 1, § 1.

While appellant admits that he signed the affidavits against the appellee, appellant urges that no warrants were issued on said affidavits and therefore no action was instituted by the appellant. However, it is not necessary that the warrant does in fact issue, since '* * * Here the wrong done is in maliciously causing a false charge to be filed in a court of justice, the tendency of which is to bring into disrepute the party against whom it is filed. It is not important whether there is or is not a technical commencement of the prosecution; the wrong is in setting it on foot. If a defendant should maliciously and wrongfully file an affidavit before a justice of the peace charging a plaintiff with having committed a felony, it would certainly be no answer to a complaint seeking a recovery for such a tort to aver that although a warrant was issued it never came to the hands of the officer. The charge in such a case is publicly made; for the proceedings of the court are open and public, and the injury is complete whether the warrant ever reaches the officer or not. The fact that it did reach the officer, and that an arrest was made under it, would be important as tending to aggravate the injury, but it is not a fact essential to the existence of a cause of action.' Coffey v. Myers, 1882, 84 Ind. 105, 106.

Appellant further argues that the evidence fails to establish want of probable cause and malice.

The question whether or not probable cause existed under a given statement of facts is a question of law for the court, not a question of fact for the jury. Where the evidence presents conflicting theories on the question of probable cause, one theory being consistent with the existence of probable cause and the other consistent with its absence, it is:

'* * * the duty of the court, on the one hand, to group the facts within the evidence which it concludes, as a matter of law, show probable cause, and then hypothetically state such group of facts to the jury, directing it that if it finds such group of facts proven by the evidence that it must find that there was probable cause, and, on the other hand, to group the other facts within the evidence which it concludes, as a matter of law, show the absence of probable cause, and then hypothetically state those facts to the jury, directing it that if it finds...