Gee v. Culver

• Decision Date: 18 December 1885
• Citation: 13 Or. 598,11 P. 302
• Parties: GEE v. CULVER.
• Court: Oregon Supreme Court

11 P. 302

13 Or. 598

GEE v. CULVER.

Supreme Court of Oregon

December 18, 1885

Tanner & Carey, for appellant, M.F. Culver.

O.P Mason, for respondent, D.L. Gee.

LORD J.

This is an action for malicious prosecution. The complaint is in the ordinary form. The answer denies that the prosecution was instituted maliciously, or without probable cause. The case was in this court on appeal at the last term, and was reversed for error of the court below in giving certain instructions excepted to by the appellant. See 6 P. 775. It appears by the bill of exceptions that the court, after having instructed the jury as to what would constitute probable cause, and that both want of probable cause and malice must concur before the action could be maintained gave the jury the following instruction: "It is not necessary that there should have been any spite or hatred or bad feeling on the part of the defendant towards the plaintiff to constitute malice, but any wrongful act, done intentionally, tending to injure another without just cause or excuse, is malicious;" which was excepted to by the defendant, and constitutes the main ground of error relied upon for reversal.

A recurrence to definition will aid in testing the correctness of this instruction. What is meant by "malice," in the sense of the law? "Malice," in common acceptation, means ill will against a person, but in its legal sense it means a wrongful act done intentionally without just cause or excuse. Bormage v. Prosser, 4 Barn. & C. 255. Chief Justice SHAW defined it thus: " 'Malice,' although in its popular sense it means hatred, ill will, or hostility to another, yet, in its legal sense, has a very different meaning, and characterizes all acts done with an evil disposition, a wrong or unlawful motive or purpose; the willful doing of an injurious act without lawful excuse." Com. v. York, 9 Metc. 104. Judge STORY, thus: " 'Malice,' in the sense of the law, does not necessarily presuppose in a party personal hatred or revengeful spirit against the party injured. It is sufficient to constitute it a malicious act that it is wrongfully and willfully done, with a consciousness that it is not according to law or duty." Wiggin v. Coffin, 3 Story, 7. Hence it is said that the intentional doing of a wrongful act, with knowledge of its character, and without cause or excuse, is malicious. Rounds v. Railroad Co., 3 Hun, 335. It imports nothing more than the wicked and perverse disposition with which the party commits the act. Com v. York, supra. But it need not imply "malignity," nor even "corruption," in the appropriate sense of these terms. Any improper motive constitutes malice, in the sense it is here used. Culbertson v. Cabeen, 29 Tex. 256. "The malice necessary to be shown in order to maintain this action [malicious prosecution] is not necessarily revenge, or other base and malignant passion. Whatever is done willfully and purposely, if it be at the same time wrong and unlawful, and that known to the party, it is in legal contemplation malicious. That which is done contrary to one's own conviction of duty, or with a willful disregard of the rights of others, whether it be to compass some unlawful end, or some lawful end by unlawful means, or, in the language of the charge, to do a wrong and unlawful act, knowing it to be such, constitutes legal malice." Wills v Noyes, 12 Pick. 327.

"Malice," then, in the enlarged sense and meaning of the law, is not restricted only to anger, hatred, and revenge, but includes every other unlawful and unjustifiable motive; so that it may be said that any motive, other than that of simply instituting a prosecution for the purpose of bringing a person to justice, is a malicious motive on the part of a person who acts under the influence of it. So much with reference to definition, or to what is meant by the term "malice" or "malicious," in the legal sense.

But the term "malice" has, in law, a twofold signification. There is what is known as "malice in law," or "implied malice," and "malice in fact," or "actual malice." "Malice in law" denotes a legal inference of malice from certain facts proved. It is a presumption of malice which the law raises from an act unlawful in itself which is injurious to another and is declared by the court. "Malice in fact," or "actual malice," relates to the actual state or condition of the mind of the person who did the act, and is a question of fact, upon the circumstances of each particular case, to be found by the jury. In actions for malicious prosecutions there is no such thing as malice in law, but malice in fact must be proved, and its existence is purely a question of fact for the jury. Ritchey v. Davis, 11 Iowa, 124. But in this form of action malice is not considered in the sense of spite or hatred against an individual, but of malice animus, and as denoting that the party is actuated by improper and indirect motives. Mitchell v. Jenkins, 5 Barn. & Adol. 594. To prove actual malice it is not necessary, therefore, that the prosecution complained of should proceed from hatred or ill will to the plaintiff, but it may be inferred from any improper and unjustifiable motive which the facts disclose...