Lawrence v. Leathers

• Citation: 31 Ind.App. 414,68 N.E. 179
• Parties: LAWRENCE et al. v. LEATHERS.
• Decision Date: 09 October 1903
• Court: Court of Appeals of Indiana

31 Ind.App. 414

68 N.E. 179

LAWRENCE et al.

v.LEATHERS.

Appellate Court of Indiana, Division No. 2.

Oct. 9, 1903.

Appeal from Superior Court, Marion County; Vinson Carter, Judge.

Action by David J. Leathers against Henry W. Lawrence and another. From a judgment for plaintiff, defendants appeal. Affirmed in part, and reversed in part.Harold Taylor, for appellants. Rochford & Wall, for appellee.

ROBY, J.

Appellee sought by this action to recover damages from appellants for alleged malicious prosecution. Trial by jury; verdict for $1,300; remittitur of $500; judgment for $800, from which the appeal is taken. Motions made by the appellants for judgment on the answers to interrogatories, returned with the verdict, and for a new trial were overruled, such action being assigned as error.

The law governing suits for malicious prosecution has been established by numerous adjudications. It is essential to their maintenance to aver and prove that the prosecution complained of was instituted without probable cause and maliciously. Helwig v. Becknell, 149 Ind. 131, 133, 46 N. E. 644, 48 N. E. 788. Malice is a question of fact to be determined by the jury. Helwig v. Becknell, supra. The existence or nonexistence of probable cause, upon facts found by the jury, is a question of law for the court. Pennsylvania, etc., Co. v. Weddle, 100 Ind. 138;Cottrell v. Cottrell, 126 Ind. 181, 25 N. E. 905;Terre Haute, etc., Co. v. Mason, 148 Ind. 578, 46 N. E. 332. The seventh instruction given at the trial herein by the court of its own motion correctly defined the term “probable cause.” The tenth and twelfth instructions so given erroneously submitted the question as to whether probable cause for the prosecution existed, to the jury generally, as an issue for its determination. Pennsylvania, etc., Co. v. Weddle, supra; Cottrell v. Cottrell, supra.

The facts giving rise to the prosecution complained of were as follows: Appellant Lawrence was the owner of the Spencer House, a hotel in Indianapolis. On November 4, 1900, it was reported to him that a man who had registered at the hotel under the name of Paul De Lury, and had been occupying one of the rooms therein, had not occupied his room the night before, and that there was baggage therein. The man had left without paying his bill, amounting to $15. The baggage consisted of sample cases containing shoes, and an order book bearing the name of a Cincinnati shoe house. De Lury had registered from St. Louis. White made inquiry thereafter, but was unable to learn of any salesman of the name. On January 19th following, he inquired of one Sullivan, a traveling salesman from Cincinnati, who examined the cases, samples, and order book, and told White that they were evidently from the Cincinnati Shoe Company, and belonged to a salesman named Leather S. White asked him to call upon the shoe company upon his return home, and tell them where the samples were, and that they could have them by settling the bill. Sullivan did call upon the company, and thereafter wrote White as follows: “I called on Mr. Julian of the Cincinnati Shoe Co., relative to the samples you have, that were left by Mr. Leathers. He said he had written to you and thought you would send him samples if he would inform you as to the whereabouts of Leathers. I found out that Leathers lives in Indianapolis, and you can probably locate him by looking in the directory or calling on F. E. Brown or W. H. Ban, shoe merchants of E. Washington St. From Mr. Julian's remarks I do not think he cares to lose anything on this deal if he can help it, so you can act accordingly. He would like to get the samples without making good the bill you have against Leathers.” The same day that this was received, White also received a letter from the shoe company, as follows. “Cincinnati, Ohio, Jan. 19, 1901. Manager Spencer House, Indianapolis, Ind. Dear Sir: We understand from a traveling man, Mr. Sullivan, that you have a lot of our samples in your possession, left there by a man who was traveling for us and who, it seems, beat you out of a board bill and also beat us out of a lot of money. We would like to have these samples and would probably give more for them than anybody else. Please write us the circumstances and see if we cannot adjust the matter and get our shoes. We understand also that you would like to have this young man's address. If this matter is adjusted to our satisfaction we can tell you where to find him. And not four miles from your own office. Yours very truly, Cinti. Shoe Co.” After the receipt of these letters he looked in the city directory, and found that there were only three persons named Leathers listed therein; the appellee's occupation being given as that of clerk. He thereupon visited one of the merchants indicated in Sullivan's letter, and asked him if he knew a traveling man by the name of Leathers. He said that he did know such a man; that he had traveled for the Cincinnati Shoe Company, but did not think that he was working for them at that time; that he lived on Park avenue. White then, without making any further inquiries, consulted a deputy prosecuting attorney, and made a statement of the facts, as he had ascertained them, to him. The attorney asked him if he could identify the man, and White said that he could not, but that one of his clerks could. The attorney told him that, according to his statement and the letters, he thought he had a good case, White had at that time no doubt but that Leathers was the man who had left the samples at the hotel. He had no acquaintance with or knowledge of him, and acted deliberately and without anger. Thereupon the attorney prepared and said appellant executed an affidavit charging appellee with the crime of unlawfully removing articles of value from a boarding house, as defined by the act of March 3, 1897 (Acts 1897, p. 123; section 7254b, Burns' Rev. St. 1901). The affidavit was at once filed, and a warrant for appellee's arrest issued by a justice of the peace. The warrant was served, and appellee placed under arrest. The hotel clerk, instead of identifying him as De Lury, stated that he had never seen him before. The prosecution was then dismissed, and this action thereafter brought against White and Lawrence, it being averred in the second paragraph of the complaint. Upon which the jury found for appellee that said defendants were the owners and proprietors of a certain boarding house, and that defendants unlawfully procured plaintiff to be arrested.

It is evidently the theory of the pleader that such alleged joint ownership or partnership rendered the defendant Lawrence responsible for the alleged wrong by his codefendant White. Such relation in itself is not, however, sufficient to render the non-acting partner liable. In the absence of knowledge, he would not be responsible for the act of his codefendant, unless it was made to appear that he had in some way authorized White to take the steps complained of. Rosenkrans v. Barker, 115 Ill. 331, 3 N. E. 93, 56 Am. Rep. 169;Gilbert v. Emmons, 42 Ill. 143, 89 Am. Dec. 412;Marks v. Hastings, 101 Ala. 165, 13 South. 297. The jury, with its general verdict, returned answers to interrogatories, from which it appears, without conflict or contradiction, that appellant Lawrence had nothing personally to do with the prosecution complained of; that he did not know that an affidavit would be made or filed until after the prosecution had terminated; that he did not advise or...