Helwig v. Beckner

• Decision Date: 01 April 1897
• Parties: HELWIG v. BECKNER.
• Court: Indiana Supreme Court

149 Ind. 131

46 N.E. 644

HELWIG

v.BECKNER.¹

Supreme Court of Indiana.

April 1, 1897.

Appeal from superior court, Marion county; W. J. Hammond, Judge pro tem.

Action by Iley Beckner against Frank Helwig. There was judgment for plaintiff on a special verdict, and defendant appeals. Reversed.

Miller, Winter & Elam and Chas. E. Averill, for appellant. Thos. Hanna, Geo. W. Galvin, and Wm. Quinn, for appellee.

MONKS, J.

Appellee brought this action against appellant to recover damages for malicious prosecution. The jury returned a special verdict, on which appellant moved for a judgment in his favor, which motion the court overruled and rendered judgment thereon in favor of appellee. The errors assigned call in question the action of the court in overruling appellant's motion for a judgment in his favor, and in rendering judgment in favor of appellee. It is insisted by appellant that the special verdict is not sufficient to support a judgment in favor of appellee, for the reason that the jury failed to make any finding upon the question of malice. The complaint charges that appellant caused appellee to be indicted for larceny and embezzlement, and alleges that, in so doing, appellant acted maliciously and without probable cause. Each of these averments was essential in order to make a good complaint. Railroad Co. v. Mason (this term) 46 N. E. 332;Seeger v. Pfeifer, 35 Ind. 13;McCullough v. Rice, 59 Ind. 580, 584;Paddock v. Watts, 116 Ind. 146, 149, 18 N. E. 518;Richter v. Koster, 45 Ind. 440, 444;Galloway v. Stewart, 49 Ind. 156;Lacy v. Mitchell. 23 Ind. 67;Stancliff v. Palmeter, 18 Ind. 321;Workman v. Shelly, 79 Ind. 442, 445;Schoonover v. Reed, 66 Ind. 598;Strickler v. Greer, 95 Ind. 596, 597;Uppinghouse v. Mundel, 103 Ind. 238, 241, 2 N. E. 719; 1 Jagg. Torts, 624. What constitutes probable cause is a question of law, for the court to determine. Where a special verdict is returned, the jury must find the facts; and upon the facts found the court must, as a matter of law, decide whether there was probable cause. Pennsylvania Co. v. Weddle, 100 Ind. 138, 144;Cottrell v. Cottrell, 126 Ind. 181, 184, 25 N. E. 905. Malice, however, is a question of fact to be submitted to and found by the jury, and without proof of malice the action cannot be maintained; nor does the law infer malice from the want of probable cause. Newell v. Downs, 8 Blackf. 523;Wilkinson v. Arnold, 11 Ind. 45;Ammerman v. Crosby, 26 Ind. 451;Oliver v. Pate, 43 Ind. 132; Strickler v. Greer, supra. The court or jury trying the cause may, however, as a matter of fact, infer malice from the want of probable cause, but are not required to do so, as such inference does not necessarily follow from the want of probable cause. Newell v. Downs, supra; Wilkinson v. Arnold, supra; Ammerman v. Crosby, supra; Oliver v. Pate, supra; Richter v. Koster, supra; 1 Jagg. Torts, 624. It is clear that, in an action for malicious prosecution, malice is a question of fact. It must be alleged in the complaint and established by the evidence, and, when a special verdict is returned, it must be found as a fact by the jury; and, where there is no finding of malice, such verdict will not support a judgment for the plaintiff in such action. Even though the facts found in a special verdict show the want of probable cause, yet neither this nor the trial court can infer malice therefrom, as that inference can only be drawn by the triors of the facts. Ammerman v. Crosby, supra; Oliver v. Pate, supra.

Appellee insists that the final termination of the criminal case in favor of appellee, which was found in the special verdict, was prima facie evidence of malice. Such is not the law in this state. Bitting v. Ten Eyck, 82 Ind. 421, 424; 14 Am. & Eng. Enc. Law, 65. See, also, Griffin v. Chubb, 7 Tex. 603;Griffis v. Sellars, 2 Dev. & B. 492;Heldt v. Webster, 60 Tex. 207;Williams v. Van Meter, 8 Mo. 336;Stone v. Crocker, 24 Pick. 81;Brown v. Lakeman, 12 Cush. 482;Thompson v. Rubber Co., 56 Conn. 493, 16 Atl. 554; Grant v. Deuel, 3 Rob. (La.) 17; Staub v. Van Benthuysen, 36 La. Ann. 467;Flickinger v. Wagner, 46 Md. 580;Hall v. Fisher, 20 Barb. 441;Marks v. Townsend, 97 N. Y. 590; Gilliford v. Windel, 108 Pa. St. 142; Emerson v. Cochran, 111 Pa. St. 619, 4 Atl. 498;Asevado v. Orr, 100 Cal. 293, 34 Pac. 777;Yocum v. Polly, 1 B. Mon. 358. But if the law were as claimed by appellee, and the finding of the termination of the criminal cause in favor of appellee was prima facie evidence of the malice, this court is not authorized to infer malice from such finding, for the reason, as we have shown, that malice is not a question of law for the court, but of fact for the jury, to determine. Besides, the settled rule is that the special verdict must find facts, and not the evidence. Gordon v. Stockdale, 89 Ind. 240, 244. The conditionalconclusion to the special verdict, finding for the plaintiff if the law on the facts found is adjudged to be in his favor, otherwise finding for the defendant, is not absolutely necessary to the validity of a special verdict; and this part of the verdict cannot be considered by the court in determining whether the law, on the facts found, is with the plaintiff or defendant. Hendrickson v. Walker, 32 Mich. 68;Railway Co. v. Lucas, 119 Ind. 583, 584, 21 N. E. 968; Railroad Co. v. Taft, 2 Ind. App. 237, 242, 28 N. E. 443. There is no finding in the special verdict that appellant, in causing appellee to be indicted, acted maliciously. As the burden of proof as to the allegation of malice was upon appellee,...