Griswold v. Horne

• Decision Date: 19 May 1917
• Docket Number: Civil 1521
• Parties: H. S. GRISWOLD and MARY GRISWOLD, Appellants, v. REBECCA HORNE, Appellee
• Court: Arizona Supreme Court

165 P. 318

19 Ariz. 56

H. S. GRISWOLD and MARY GRISWOLD, Appellants, v. REBECCA HORNE, Appellee

Civil No. 1521

Supreme Court of Arizona

May 19, 1917

APPEAL from a judgment of the Superior Court of the county of Maricopa. R. C. Stanford, Judge. Reversed.

Messrs Baker & Baker, for Appellants.

Mr Robert S. Fisher and Mr. Robert A. Jarrott, for Appellee.

OPINION

FRANKLIN, C. J.

This is an action for malicious prosecution. The jury found a verdict for the plaintiff, upon which judgment was entered. The defendants moved for a new trial, which was denied. From the judgment and the order overruling the motion for a new trial this appeal is prosecuted.

The appellants, Mr. and Mrs. Griswold, who were defendants in the court below, are an elderly couple advanced in years beyond the threescore and ten. For a period of four or five years Miss Rebecca Horne, the appellee, who was plaintiff below lived in the home of appellants in Phoenix, Arizona, her occupation being that of a nurse and companion, and her reputation for honesty and integrity excellent. Miss Horne and the Griswolds grew to be very fond of each other, and lived together on the most amicable terms. Indeed, Miss Horne was regarded more as a member of the Griswold family than otherwise. She called Mr. and Mrs. Griswold "Daddy" and "Mother," and they in turn affectionately addressed her as "Dear Bess." In the summer of 1914 the Griswolds went on a summer's vacation to California and before leaving Mrs. Griswold placed some jewelry in a small box and secreted it in a large box containing some bed linen located in the lower part of the house as a place not likely to be found by anyone entering the house with intent to steal. The jewelry is not of any considerable value in money, but is highly prized by Mrs. Griswold. Some of its pieces are heirlooms of her family and dear to her as a matter of sentiment. During the absence of the Griswolds their house was occupied by Miss Horne and a Mr. and Mrs. McDole, but for a brief period of this time Miss Horne was away on a visit to Prescott. Two men, friends of Mr. McDole, also occupied a sleeping porch for two or three nights.

The Griswolds returned home on the 15th of September, and several days thereafter Mrs. Griswold, in looking for the jewelry, discovered that the small box containing it had been removed from the large box containing the bed linen and the contents of the large box containing the linen had been disarranged. Mrs. Griswold questioned Miss Horne about it, but the latter denied any knowledge whatever about the jewelry or its hiding place. Mrs. Griswold thought that Miss Horne was hiding the jewelry from her as a practical joke, because, so she states, Miss Horne saw her secrete the jewelry and was asked to rescue it in case of fire. Some of the jewelry was found in the bottom of a trunk belonging to Miss Horne and a few pieces of silverware in a chiffonier drawer located in a room occupied by her. The testimony as to the circumstances attending these matters and the conduct and attitude of Miss Horne and the Griswolds thereabouts present sharp conflicts. Eventually, however, the Griswolds claim to have become convinced that Miss Horne had stolen the jewelry, and, at the suggestion of Mrs. Griswold, Mr. Griswold swore to a complaint before a committing magistrate charging Miss Horne with the crime of grand larceny. At the preliminary examination the magistrate discharged Miss Horne, and this ended the prosecution. In the above statement we purpose merely to give a general outline of the case so that some adequate knowledge of the matter before us may be had. As the case must go back for a new trial we do not consider it proper to go over the case and recite the testimony nor express any opinion about it.

The heat of the controversy in the superior court centered about the good faith of the Griswolds in instituting the prosecution. The court gave the following instructions, which serve as a basis for our conclusions to reverse the case:

"Envy, hatred, and malice are separate and distinct passions, and the worst of these is malice, because it is a deliberate purpose to do an injury to some person without just cause or excuse. Malice in law is the deliberate purpose to injure another without just cause or excuse. It means the willing act of an evil mind; the intention to wrong another unjustly. It implies the making up of the mind to do evil to some one. Therefore any indirect motive of wrong is a malicious motive. For example, if one sets the criminal law in motion against another, not for the purpose of bringing that other to justice for the violation of some law, but for the purpose, for instance, of aiding the prosecutor to recover property, a jury might well consider that was evidence of a malicious motive, because the criminal law was not designed to aid persons in the restoration of property; and they who set the criminal law in motion for such a purpose should smart for it, and in a proper case would be made to smart for it. I trust you clearly understand now what is meant by the malice which must be present as the motive in a malicious prosecution. That malice or malicious motive must be proved to the satisfaction of the jury by the greater weight of the testimony. It is not necessary that malice be expressly shown -- for instance, by proof of threats or the like. Malice may be implied. It may be inferred from circumstances. For example, malice may be inferred in a prosecution, if the prosecution is one without probable cause. If the jury are satisfied from the testimony that the prosecution was wholly without cause or without probable cause, then they may infer, and justly infer, that it was prompted by malice.

"The court instructs the jury that, if they believe from the facts and circumstances proved on the trial that defendant had not probable cause for prosecuting the plaintiff, and that they did prosecute her, as charged in the complaint, then the jury may infer malice from such want of probable cause."

These instructions make it clear that the jury were misdirected in the essential matter of malice, so that the case must go back in order that this feature may be fairly and accurately outlined and correctly presented for the determination of another jury.

The principles by which the rights of parties are to be measured in actions of this sort are well settled. It is frequently said that actions for malicious prosecutions have never been favored in law. The idea may, perhaps, better be expressed by saying that such actions are to be properly guarded and their true principles strictly adhered to. When this is done and the proper elements to support the action have been presented it will be readily upheld. The reasons for this must at once be obvious. The purpose of the law is to protect individuals in their just rights.

"In most instances," quoting from Modern American Law, volume 2, page 287, "in determining whether or not such a right has been violated, the law looks only to the conduct of the alleged wrongdoer, without regard to the motive actuating the conduct. In some instances, however, from considerations of public policy, this rule is disregarded, and conduct is declared tortious and actionable only when prompted by evil motive. In these exceptional cases the improper intent is as much an essential part of the tort as the conduct induced by it. Malicious prosecution falls into this exceptional class. The public policy requiring this is easily found. Society cannot be protected without courts, which are the great conservative agencies in and through which the disputes and controversies of men are adjusted. It is essential that these tribunals shall be open to all persons who in good faith believe they have grievances against their neighbors, or who in good faith believe the criminal law has been violated. To adopt a policy which would make every unsuccessful plaintiff in a civil case, or every witness for the state in a criminal case, liable in damages to the defendant therein, whenever the plaintiff in the case failed to obtain judgment, would make litigation so hazardous that men would fear to resort to it."

Though public prosecutors do their part in the detection and punishment of public offenses, still it is common knowledge that the public justice is largely vindicated through the knowledge of crime possessed by private individuals, and to treat that as a legal wrong which consists merely in an unwarranted prosecution would be plainly impolitic and unjust. Such proceedings to the one charged with crime may be serious, but whatever of inconvenience and damage that may thus be suffered by the individual is overcome by the public policy of the state which protects every man who in good faith and for the purpose of vindicating the public justice institutes or sets on foot criminal proceedings. The law has therefore taken hold of the matter and established certain rules by which to fix liability for the improper institution and maintenance of actions in the courts. But, says Mr. Cooley:

"Nevertheless it is a duty which every man owes to every other not to institute proceedings maliciously which he has no good reason to believe are justified by the facts and the law. Therefore an action as for tort will lie when there is a concurrence of the following circumstances:

"(1) A suit or proceeding has been instituted without any probable cause therefor.

"(2) The motive in instituting it was malicious.

"(3) The prosecution has terminated in the acquittal or discharge of the accused." 1 Cooley on Torts, pp. 320, 321.

It will be observed that malicious motive is so important an element of this tort that it has been incorporated in its name. The action is called "malicious prosecutio...