Glenn v. Lawrence

• Decision Date: 06 December 1917
• Docket Number: No. 11502.,11502.
• Citation: Glenn v. Lawrence, 280 Ill. 581, 117 N.E. 757 (Ill. 1917)
• Parties: GLENN v. LAWRENCE et al.
• Court: Illinois Supreme Court

280 Ill. 581

117 N.E. 757

GLENN

v.LAWRENCE et al.

No. 11502.

Supreme Court of Illinois.

Oct. 23, 1917.

Rehearing Denied Dec. 6, 1917.

Appeal from First Branch Appellate Court, First District, on Appeal from Superior Court, Cook County; Richard E. Burke, Judge.

Case for malicious prosecution by John M. Glenn against Andrew M. Lawrence and another. From a decision of the Appellate Court of the First District affirming the judgment of the trial court directing a verdict of not guilty, plaintiff appeals. Affirmed.Zane, Morse & McKinney, of Chicago, for appellant.

Mayer, Meyer, Austrian & Platt, of Chicago (Levy Mayer and Alfred S. Austrian, both of Chicago, of counsel), for appellees.

CARTWRIGHT, J.

This action of trespass on the case for malicious prosecution of the appellant, John M. Glenn, by the appellees, Andrew M. Lawrence and Roy D. Keehn, on a charge of criminal libel based on two publications in the Manufacturers' News, a newspaper published by the appellant, was brought in the superior court of Cook county. The plea was the general issue, and on a trial the court, at the conclusion of the evidence offered by plaintiff, directed a verdict of not guilty, and judgment was entered accordingly. The Appellate Court for the First District affirmed the judgment on appeal, and this further appeal was prosecuted.

The facts proved upon which the verdict was directed are as follows: On February 14, 1913, the senate of this state passed a resolution directing the appointment of a committee, of which Barratt O'Hara, Lieutenant Governor, was to be president, to investigate, and to report to that or the succeeding senate, the workings of the existing statutes dealing with the subject of the white slave traffic. The committee held sessions and examined witnesses in Chicago. The plaintiff was the publisher of a newspaper called the Manufacturers' News, published in that city, and on March 6, 1913, it contained the following:

‘Lieutenant Governor Barratt O'Hara, chairman of the so-called ‘white slave commission,’ was for a number of years connected with the Chicago Examiner. He now enjoys the fullest confidence of Andrew Lawrence, representative of the Hearst papers in Chicago. It is our judgment that this investigation would not be nearly so vigorous if the State street merchants would furnish the Hearst papers with a sufficient amount of full-page advertising to satisfy the greed of Mr. Lawrence.'

This was followed by a quotation from a book written by Jane Addams, and criticisms of the alleged theory of the commission that the evil was due to low wages, and allegations that the committee apparently had in view the establishment of a minimum wage for women. On March 13, 1913, the plaintiff published in his newspaper another article concerning a meeting of the committee, to which the plaintiff was brought and questioned as to the foundation of his former statement as to the connection between O'Hara and Lawrence. That article contained the following:

‘During the examination Lieutenant Governor O'Hara was repeatedly prompted by M. B. Coan, who was immediately behind him and part of the time stood up so he could better say to Mr. O'Hara what he desired. Every person in the room had as good an opportunity to observe what was taking place between Mr. O'Hara and Mr. Coan as the witness. Many of the members of the General Assembly and many of the newspaper men present know Mr. Coan personally and know whether he has relations with Andrew Lawrence and the Hearst papers or not.’

This was followed by inquiries whether it was not well known that Coan was the personal representative of Andrew Lawrence and reported to him, and how it had happened that Coan was appointed investigator of the commission. On March 14, 1913, the defendant Andrew M. Lawrence subscribed and swore to a criminal complaint, which was presented to a judge of the municipal court of Chicago, setting forth in haec verba the publication of March 6, 1913, and alleging that it was libel upon Andrew M. Lawrence and Barratt O'Hara, and praying for a warrant against the plaintiff, John M. Glenn and Glenn & Co., a corporation. The judge indorsed upon the complaint the following:

‘I have examined the within information and the information and am satisfied that there is probable cause for filing the same. Leave is hereby given to file it, and it is ordered that an instanter capias be issued against the defendant, bail fixed at $2,000.’

The plaintiff was arrested and taken, in the custody of two officers, to detective headquarters, and from thence to the court room of the chief justice of the municipal court, and there gave bail in the sum of $2,000. There were several continuances, and the matter finally came on for hearing. The municipal court having jurisdiction to try the plaintiff for the alleged offense, the chief justice proposed to try the case as upon an information. An assistant state's attorney appeared, and, on the expressed wish of the defendant Roy D. Keehn to get out of the court, made a motion to dismiss the prosecution, which was done and the plaintiff was discharged. That was on April 2, 1913, and the defendants, Lawrence and Keehn, then went before a judge of the criminal court of Cook county having jurisdiction to hold the plaintiff to the grand jury and filed a like complaint, signed and sworn to by the defendant Lawrence, charging the plaintiff with a criminal libel in the publication of March 6, 1913, and the judge ordered a warrant issued. Lawrence also made a similar complaint, charging a libel by both publications of March 6 and 13. There was some uncertainty in the evidence whether the second complaint was signed and sworn to. The plaintiff appeared the next day before the judge of the criminal court, waived service, and was released on bail. While the matter was pending before the judge of the criminal court, the state's attorney presented to the grand jury a charge against the plaintiff based upon the publication, but the grand jury made a return of ‘not a true bill.’ The complaints were thereupon dismissed by the judge of the criminal court, upon motion of the plaintiff, for want of prosecution, the state's attorney agreeing to the motion.

The facts which will sustain an action for malicious prosecution are (1) the commencement or continuance of an original criminal or civil judicial proceeding; (2) its legal causation by the present defendant against plaintiff, who was defendant in the original proceeding; (3) its bona fide termination in favor of the present plaintiff; (4) the absence of probable cause for such proceeding; (5) the presence of malice therein; and (6) damage conforming to legal standards resulting to the plaintiff. 26 Cyc. 8. The plaintiff proved at the trial the first, second, third, fifth, and sixth elements of a good cause of action against the defendant Lawrence, but proved nothing against the defendant Keehn except that he acted as attorney for Lawrence. The evidence showed the commencement of the prosecutions against the plaintiff; that the prosecutions, both in the municipal court and before the judge of the criminal court, were instituted by the defendant Lawrence; that the first prosecution was dismissed by the state's attorney at the instance of Keehn, acting for the defendant Lawrence, and the second prosecution was dismissed after the grand jury ignored the charge; that the defendant...