Goldstein v. Rau

• Decision Date: 14 January 1925
• Docket Number: 34.
• Citation: 127 A. 488,147 Md. 6
• Parties: GOLDSTEIN ET AL. v. RAU.
• Court: Maryland Court of Appeals

127 A. 488

147 Md. 6

GOLDSTEIN ET AL. v. RAU.

No. 34.

Court of Appeals of Maryland

January 14, 1925

Appeal from Baltimore City Court; Henry Duffy, Judge.

"To be officially reported."

Action by Julia F. Rau against Nettie Goldstein and others. From the judgment, defendants Nettie Goldstein and Oscar Cecil appeal. Affirmed.

Plaintiff's second and third prayers were as follows:

"(2) The jury are instructed that probable cause is such reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man in believing the party accused to be guilty." (Granted.)

"(3) If the jury should find their verdict for the plaintiff they are at liberty to take into consideration all the circumstances of the case and award such damages as will, not only compensate the plaintiff for the wrong and indignity she has sustained in consequence of the defendants and each of their wrongful acts, but may also award exemplary or punitive damages as a punishment to the defendants for such wrongful acts." (Granted.)

Defendant Goldstein's first, second, third, fourth, fifth, sixth, and seventh prayers were as follows:

"(1) Nettie Goldstein, one of the defendants in this case, prays the court to instruct the jury that the plaintiff has offered no evidence legally sufficient to entitle the plaintiff to recover, and the verdict must be for the said defendant." (Refused.)

"(2) The court instructs the jury that the plaintiff has offered no evidence legally sufficient under the pleadings in this case against Nettie Goldstein, one of the defendants in this case, and therefore the verdict must be for said defendant Nettie Goldstein." (Refused.)

"(3) The jury are instructed that this suit is brought on a theory that the arrest of the plaintiff was caused by the defendant Nettie Goldstein, wrongfully, in the view of the law. This case does not present for decision merely the question of whether or not the plaintiff violated the ordinance mentioned in the declaration, and therefore the acquittal of the plaintiff for the alleged violation of the said ordinance does not decide the question in this case, for, even though a person arrested may be acquitted of the charge on which the arrest is made, nevertheless, the arrest may still have been lawful and proper without making persons who promote the arrest liable in a suit for damages such as this; that the jury are further instructed that the liability of any defendant in malicious prosecution cases is incurred only when the arrest or subsequent proceedings are promoted upon a false charge, out of malice, and without probable cause for promoting it; that the jury are instructed that by the uncontradicted evidence in this case Nettie Goldstein interested herself with others to cause to have abated by due process of law what they and she thought was a nuisance detrimental to the persons living in the neighborhood from the place where the dog mentioned in the evidence was allowed and permitted to remain and be maintained, and therefore their verdict must be for the said defendant Nettie Goldstein." (Refused.)

"(4) The court instructs the jury, if they find from the evidence that the defendant Nettie Goldstein, together with others, was prompted by public motives to have what they and she thought was a nuisance abated, and that such nuisance was being maintained by the said plaintiff, and, if they further find from the evidence that she acted upon such circumstances that would have warranted any cautious person in believing that the plaintiff was guilty of maintaining the nuisance complained of by the said Nettie Goldstein and others, then the verdict must be for the said defendant, Nettie Goldstein." (Granted.) "(5) The court instructs the jury that the burden of proof is upon the plaintiff to show that Nettie Goldstein, one of the defendants in this case, acted maliciously and without probable cause in view of the law, that is to say, if the jury find from the evidence that Nettie Goldstein acted in the manner that would have induced any cautious person to have similarly acted under the circumstances, then their verdict must be for the said defendant." (Granted.)

"(6) The court instructs the jury that the burden of proof is on the plaintiff to show that the defendants or any of them acted maliciously and without reasonable or probable cause, and that, if the testimony in this case should be such as to leave the minds of the jury in a state of equipoise as to whether or not the defendant Nettie Goldstein acted maliciously and without probable cause, then their verdict must be for the said defendant." (Granted.)

"(7) The court instructs the jury that probable cause is such reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves, to warrant a cautious man in believing the party accused of being guilty, and, if the jury find that the police magistrate, before whom the plaintiff was taken, held the plaintiff for the action of the grand jury, and the grand jury indicted said plaintiff, then they may consider these facts in determining the question as to whether or not probable cause existed as to the defendants, or any of them." (Withdrawn.)

Defendant Cecil's first, second, third, and fourth prayers, and defendant's prayer, were as follows:

"(1) The court instructs the jury that probable cause is such reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves, to warrant a cautious man in believing the party accused of being guilty, and, if the jury find that the police magistrate, before whom the plaintiff was taken, held the plaintiff for the action of the grand jury, and the grand jury indicted said plaintiff, then they may consider these facts in determining the question as to whether or not probable cause existed as to the defendant Oscar Cecil." (Withdrawn by defendant.)

"(2) The defendant Oscar Cecil prays the court to instruct the jury that, if they find from the evidence that the defendant Oscar Cecil was only summoned to appear as a witness in the case against the plaintiff, but that he did not swear out the warrant of arrest for her, nor participated in any manner therein 'or in the prosecution,' then their verdict must be for the defendant Oscar Cecil." (Granted as amended.)

"(3) The defendant Oscar Cecil prays the court to instruct the jury that the burden of proof is upon the plaintiff to establish by a preponderance of evidence that the defendant Oscar Cecil swore out the warrant of arrest for the plaintiff, and, unless they so find, then their verdict must be for the defendant Oscar Cecil." (Refused.)

"(4) The jury are instructed that this suit is brought on a theory that the arrest of the plaintiff was caused by the defendant wrongfully in view of the law; that it does not present for decision merely the question whether or not the plaintiff violated the ordinance, and the acquittal of the plaintiff does not decide the question here, for, even though a person arrested may be acquitted of the charge on which the arrest is made, the arrest may still be found to have been lawful and proper, and without making persons who promote the arrest liable in a suit for damages such as this; that liability is incurred only in cases in which the arrest or subsequent proceedings are promoted upon a false charge, out of malice, and without probable cause for promoting it." (Refused.)

Defendant's prayer:

"The defendant Oscar Cecil prays the court to instruct the jury that there is no evidence in this case legally sufficient to entitle the plaintiff to recover, and their verdict must therefore be for the defendant Oscar Cecil." (Refused.)

Argued before URNER, ADKINS, OFFUTT, DIGGES, and PARKE, JJ.

Charles Jackson, of Baltimore (Arthur R. Padgett, of Baltimore, on the brief), for appellants.

Jere J. Santry, of Baltimore, for appellee.

ADKINS J.

Appellants are two of five defendants who were sued for malicious prosecution by appellee; one of the other defendants having been returned non est, and the verdict having been in favor of the other two under instructions of the trial court.

The narr. alleges that the defendants, and each of them, did on or about February 24, 1921, charge upon oath before Magistrate Chapman, one of the police justices of Baltimore City, that the plaintiff owned and maintained a dog in violation of ordinance No. 138, by allowing said dog to disturb a certain neighborhood; that as a result of such charge a warrant was served on the plaintiff at her home by a police officer who took her into custody, placed her in an automobile of the police department of Baltimore City, and transported her over the public highways of said city to the Northwestern police station, "where she was docketed as a prisoner, searched, and forthwith placed in a cell for a considerable time," until subsequently released on bail plaintiff having prayed a jury trial; that the said defendants, and each of them, made the aforesaid charges and accusations against the plaintiff from motives of malice, and that there was no reasonable or probable cause; that the said defendants and each of them...