Heap v. Parrish

• Court: Indiana Supreme Court
• Writing for the Court: Howk, J.
• Citation: Heap v. Parrish, 104 Ind. 36, 3 N.E. 549 (Ind. 1885)
• Decision Date: 23 November 1885
• Docket Number: 11,875
• Parties: Heap v. Parrish

3 N.E. 549

104 Ind. 36

Heap v. Parrish

No. 11,875

Supreme Court of Indiana

November 23, 1885

From the Sullivan Circuit Court.

The judgment is reversed, with costs, and the cause is remanded with instructions to sustain the motion for a new trial.

S Coulson, J. S. Bays, S. C. Coulson, J. T. Beasley and A. B Williams, for appellant.

W. C Hultz, W. S. Maple and W. A. Massey, for appellee.

OPINION

Howk, J.

On the 19th day of November, 1883, one Thomas W. Parrish, as sole plaintiff, commenced this action against the appellant, James Heap, as sole defendant, to recover damages for an alleged malicious prosecution of such plaintiff. The cause was put at issue by the appellant's answer in general denial of the plaintiff's complaint. The issues joined were tried by a jury, and a verdict was returned for the plaintiff, assessing his damages in the sum of $ 90. Over appellant's motion for a new trial, the court rendered judgment against him on the verdict, in favor of the plaintiff, Thomas W. Parrish. From this judgment the defendant, Heap, appealed to this court; and after his appeal was perfected, but before the submission of the cause, the death of the plaintiff was suggested, and it was shown that, by an order of the court below, all the estate of such decedent had been vested in his widow, Martha J. Parrish. By her agreement and that of appellant, the name of Martha J. Parrish is substituted for that of her deceased husband, as appellee in this cause.

All the questions discussed by appellant's counsel, in their brief of this cause, arise under the alleged error of the circuit court in overruling his motion for a new trial. Before considering any of these questions, however, we deem it necessary to a proper understanding of the case, that we should first give the substance of the plaintiff's complaint. The plaintiff, Thomas W. Parrish, alleged in his complaint that the appellant maliciously, and without probable cause, instituted a criminal proceeding against such plaintiff, in the court below, charging him with having, on the 28th day of June, 1882, committed a malicious trespass, by then and there injuring and causing to be injured a certain building and structure, then and there situate, built and crected at and over a coal-shaft, and commonly called a coal-shaft building, then and there the property of the appellant, and of the value of $ 500; that the clerk of such court issued a warrant upon such charge, by virtue of which the plaintiff herein was arrested and held under bond to appear at such court, and was afterwards tried, acquitted and discharged, and such prosecution against him was ended; that by such prosecution the plaintiff herein was greatly damaged in his good name, and greatly scandalized among his neighbors, and suffered great mortification and agony of mind, and was put to great trouble and expense in and about his defence, and was hindered and prevented from attending to his daily affairs, to his damage $ 2,000, for which sum and costs he demanded judgment.

Appellant's counsel first insist that the verdict of the jury was not sustained by sufficient evidence in this, that the evidence fails to show that the appellant maliciously and without probable cause instituted the prosecution against the plaintiff. It is conceded by his counsel, that appellant instituted the prosecution, and that it finally terminated in the acquittal of the plaintiff; but counsel claim that the evidence wholly fails to show the want of probable cause, or that appellant was instigated by malice in commencing the prosecution. We think, however, that there is evidence in the record which tends at least to prove that the appellant, without any probable or reasonable cause, instituted the criminal prosecution against the plaintiff, and from which the jury might have fairly inferred and found that appellant was instigated by malice to commence such prosecution. There was evidence before the jury tending to prove that appellant's coal-shaft building was situated within the limits of the incorporated town of Farmersburgh, and extended over and obstructed the free use of one of the public streets of such town; that both appellant and plaintiff had lived in such town for several years, and plaintiff was the street commissioner of such town; that, as such officer, he removed so much of the shed of appellant's coal-shaft building as extended over and obstructed a public street of such town, and that, for this action of the plaintiff, the appellant instituted the criminal prosecution against him for an alleged malicious trespass on appellant's building. From this and other evidence appearing in the record, the jury may have found that the appellant, without any probable or reasonable cause, instituted the criminal prosecution against the plaintiff, "and malice may be inferred by the jury from the want of probable cause." Bitting v. Ten Eyck, 82 Ind. 421 (42 Am. R. 505); Pennsylvania Co. v. Weddle, 100 Ind. 138.

We can not disturb the verdict of the jury on the evidence.

The next point made by appellant's counsel in argument is that the trial court erred in the admission of certain deeds, offered in evidence by the plaintiff. The appellant's objections to the admission of these deeds in evidence were, that they were...