Johnson v. Brady

• Decision Date: 15 June 1915
• Docket Number: No. 8627.,8627.
• Citation: 109 N.E. 230,60 Ind.App. 556
• Parties: JOHNSON v. BRADY et al.
• Court: Indiana Appellate Court

60 Ind.App. 556

109 N.E. 230

JOHNSON

v.BRADY et al.

No. 8627.

Appellate Court of Indiana, Division No. 1.

June 15, 1915.

Appeal from Superior Court, Marion County; Charles J. Orbison, Judge.

Action by George W. Brady against Franklin P. Johnson and others. From a judgment for plaintiff, defendant named appeals. Reversed, with instructions.E. W. Johnson and Myers & Fenton, all of Indianapolis, for appellant. Chas. T. Hanna and Thomas A. Daily, both of Indianapolis, for appellee.

HOTTEL, J.

Appellee, George W. Brady, brought this action against appellant and his coappellees to recover damages for an alleged malicious prosecution. Appellant assigns several errors, but the ruling on his motion for new trial is the only one discussed in his brief. The only grounds of this motion attempted to be presented are: (1) The verdict is not sustained by sufficient evidence; (2) the verdict is contrary to law; and (3) one of the jurors of the jury which tried said case was incompetent to sit as a juror.

[1] Appellant's briefs show that this last ground of its motion was supported by affidavits and that counter affidavits were filed thereto. Neither of these affidavits, nor their substance, is set out in appellant's brief, and hence as to such ground of his motion no question is presented. Price v. Swartz, 49 Ind. App. 627, 97 N. E. 938;Schrader v. Meyer, 48 Ind. App. 36, 95 N. E. 335;Taylor v. Schradsky, 178 Ind. 217, 97 N. E. 790.

It is also very earnestly insisted by appellee that appellant, on account of his failure to comply with subdivision 5 of rule 22 (55 N. E. vi) of this court, has presented no question by the first and second grounds, supra, of his said motion.

[2] While such briefs may be subject to criticism, in that they fail to set out in narrative form the evidence of each particular witness as some of the decisions would seem to indicate is required by the rule relied on, they indicate a good-faith effort to comply with the rules of the court, and show such substantial compliance therewith as entitles appellant to a consideration of the sufficiency of the evidence to sustain the verdict. Geisendorff v. Cobbs, 47 Ind. App. 573, 94 N. E. 236;Pittsburg, etc., R. Co. v. Broderick, 102 N. E. 887;Ditton v. Hart, 175 Ind. 181, 93 N. E. 961;Nave v. Powell, 52 Ind. App. 496, 96 N. E. 395.

[3] In actions for malicious prosecution, where, as in this case, the prosecution was by indictment, five elements are essential and must be proven before the plaintiff will be entitled to recover, viz.: (1) The return of the indictment must be shown. (2) The person charged with such prosecution must have instigated or procured and caused the return of the indictment on which the prosecution proceeded, as hereinafter indicated. (3) Such prosecution must have been without probable cause. (4) The prosecution must have been malicious. (5) The prosecution must have terminated in the discharge of the accused. Sasse v. Rogers, 40 Ind. App. 197, 199, 81 N. E. 590. See, also, Bitting v. Ten Eyck, 82 Ind. 421, 423, 42 Am. Rep. 505; 19 A. & Eng. Ency. of Law (2d Ed.) p. 563.

[4] It is insisted by appellant that in this case there is a total failure of evidence to prove either the second, third, or fourth elements, supra. We address our inquiry, first, to whether there is any evidence to support the second element. Upon this element, the only evidence disclosed by the record which can be said to throw any light thereon is, in substance, as follows:

Brady, hereinafter referred to as “B.,” rented from appellant Johnson, hereinafter referred to as “J.,” 12 acres of ground for corn. By their contract B. was to furnish the seed and put the ground in corn for one-half of the crop of fodder and corn. B. was to shuck and crib J.'s half and leave the stalks standing in the field. The corn was planted and produced a crop. B. had his part cut up. A week or ten days after B.'s corn was cut up, J. called B. over the phone and wanted B. to cut up his (J.'s) part of the corn. Here the evidence presents a conflict. B. claimed at the trial: That, when J. called him, he (B) told him he did not have the time to cut the corn. That J. replied, “Why, B., I will release you from the shucking of the corn if you will cut it.” B. said, “No, sir; I will not do that. It takes five times as long to shuck it out as it does to cut it off the stalk.” That J. said: “Oh, well, you do it.” B. said, “Well, I don't know, but I will tell you in a minute.” That B., after he spoke to the man standing by the side of him, turned around and said, “If you can get somebody to cut the corn for me, I will cut it for the fodder, but will not cut it any other way.” To this J. replied: “That is all right, B. That is an accommodation to me, if you will do it. Just go ahead and do that, and you can have the fodder. I don't want it. I don't have any use for it.” That B. went out next day and got two colored men to cut up the corn and put in the shock, and called up J.'s house, and Mrs. J. answered, and he left word with her that he had got two men to cut the corn, and that they would be there the next morning. J. testified on the subject of the change of their original contract, substantially as follows: That he called B. up and told him that he had sold the land, and the purchaser wanted the field so it could be sown in wheat and grass, and that, if B. would cut J.'s share of the corn, he would release him from shucking and cribbing it; that B. said he would let him know, and in a few days did call up the house and told Mrs. J. to tell him (J.) that he accepted his proposition.

After this new arrangement between J. and B., viz., in the early part of December, J. contracted with a Mr. Means (hereinafter referred to as “M.”) to husk and crib the corn out of J.'s part of the fodder in question; it being agreed between J. and M. that M. should have the fodder for his work of husking and cribbing. Pursuant to this arrangement, M. husked the fodder and set it up in the field. B. knew this was being done, and after it was done sent his employé, Estay Moran, to haul the fodder away, which was done. B. testified, in substance: That, the day before the fodder was hauled away, Moran had been to the field and brought word to B. that some one was hauling this fodder away. That he (B.) at once called up J. on the phone and said to him: “Mr. J., are you giving or selling any of the fodder away?” That J. replied, “I am not giving any of it away.” That he (B.) then said, “Where did you get any of it?” That J. replied, “One-half of it belongs to me.” To which B. replied, “You gave the fodder to me for the cutting of it.” That J. said, “It don't make any difference, for I have given it to another man to shuck it out.” That B. said, “All right, I will show you.” According to J.'s testimony, he left for the Poultry Show at Chicago on December 9, 1910, before M. had completed husking and cribbing the corn, and, when he returned on the morning of December 15th, the fodder had been all taken away. The next morning M. came over and told him the fodder was gone. That they went to the house, called up B., and he (B.) said he had taken the fodder himself. As to this conversation over the phone, B. testified that J. said: “B., I will have you before the grand jury, and I will make it (the fodder) cost you more than it is worth,” and that he replied, “To h-l with you and your grand jury!” J. denied mentioning the grand jury over the phone and was corroborated therein by his wife and M. After this conversation, and after B. had taken away all the fodder, M. called up B. by phone and asked him what he was going to do about the fodder. B. replied he was going to do nothing about it. A day or so later, B. had a conversation with M., and asked him what he meant by calling him up over the phone, and M. replied that he did not mean anything, only he wanted him to pay him, and said, “George (B.), I am going to have my corn, and if I cannot get it I am going to start the ball rolling.” And B. replied, “Go ahead.”

Soon after this conversation, M. commenced suit before Squire Howe at Broad Ripple, for damages for conversion of the fodder in question, and on January 13, 1911, recovered a judgment for $25. At this trial M. was represented by David A. Myers as his attorney, whom he had known for a couple of years, and B. appeared in person without an attorney. Myers also appears as one of the attorneys for appellant in the instant case. Mr. and Mrs. J. both testified as witnesses for M. at this trial. An execution was issued on the judgment recovered by M., and the return showed that it was read to B. on February 18, 1911; that he claimed no property; that on July 27, 1911, a levy was made on seven acres of growing corn, and on August 11, 1911, there was a sale of sufficient amount to pay the judgment. This levy was made on instruction from M. Mrs. B. claimed this corn and when the levy was made she informed the constable the corn belonged to her. After this sale, M. started to cutting up the corn. Mrs. B. ordered him and the man he employed off the premises and informed them that she owned the corn. Mr. and Mrs. B. threatened to swear out a warrant for the arrest of M. M. got only about a half of a shock of this corn. After the above occurrences, M. went to Broad Ripple in September, 1911, to file an affidavit...