Lunsford v. Dietrich

• Decision Date: 01 May 1891
• Citation: 93 Ala. 565,9 So. 308
• Parties: LUNSFORD v. DIETRICH.
• Court: Alabama Supreme Court

9 So. 308

93 Ala. 565

LUNSFORD v. DIETRICH.

Supreme Court of Alabama

May 1, 1891

Appeal from city court of Birmingham; H. A. SHARPE, Judge.

This action is brought by the appellee, Carl Dietrich, against the appellant, George Lunsford, and sought to recover damages for an alleged malicious prosecution instituted by the defendant against the plaintiff. Upon the affidavit of the defendant a warrant was issued against the plaintiff, and he was arrested on the charge of the larceny of certain plans used in the erection of a building for the defendant. The plaintiff was an architect, and as such was employed by one Rousseau another architect, whom the defendant had employed to make the plans and superintend the erection of his building. The plaintiff, when so employed, drafted the preliminary sketches for the front elevation of the building, and before the completion thereof he became a partner of Rousseau. Under the agreement between the plaintiff and Rousseau, the defendant was to pay the plaintiff a part of the commissions agreed upon between him and Rousseau. During the erection of the building, upon the refusal of the defendant to pay said commissions, the plaintiff took the plans from the building in the presence of the workman, and destroyed them. These are the facts upon which defendant made the affidavit, and had the warrant issued. The plaintiff was acquitted, and now brings this action against the defendant for malicious prosecution. During the examination of Rousseau as a witness he was asked how much he owed the plaintiff when their partnership was dissolved, and also, "What was the effect on the progress of the building of the destruction of the plans?" The plaintiff objected to each of these questions, and they were excluded, against defendant's objection. The defendant requested the following written charges: (5) "The burden is on the plaintiff to give in evidence facts sufficient to satisfy the jury that the defendant, in instituting a criminal prosecution against him had no ground for the proceeding, but a desire to injure him." (9) "That, assuming the evidence in this case to be true, malice of defendant cannot be inferred; the burden was on the plaintiff to prove it." (10) "That, in respect to a criminal prosecution, probable cause is conduct of the accused tending to show that the prosecution was undertaken from public motives, or such facts as would induce a reasonable man to commence a prosecution, or circumstances sufficient to warrant a prudent man in the belief that the party [the plaintiff in this case] is guilty, of such state of facts as would lead a man of ordinary caution and prudence to entertain a belief of guilt." (11) "The jury cannot find that the defendant, in prosecuting plaintiff for larceny, did so out of malice, unless the facts in evidence are such as to satisfy any reasonable mind that the defendant had no ground for the proceeding but his desire to injure the plaintiff." (13) "Larceny is ordinarily the taking and removing by trespass of personal property which the trespasser knows belongs either generally or specially to another, with the intent to deprive the general or special owner of his property." (14) "If the facts and circumstances of the taking and carrying away by the plaintiff of the drawings and plans after they were delivered to the defendant were calculated to produce at the time, in the mind of a prudent and reasonable man, a well-grounded belief or suspicion of plaintiff's guilt of larceny or other indictable offense, then malice cannot be inferred or implied from the want of probable cause." (15) "That if the jury believe from the evidence that defendant, before he made the complaint on oath before Justice of the Peace POE, on which the warrant was issued under which plaintiff was arrested, stated the facts connected with the taking of the plans of the builder by plaintiff, and the justice of the peace misconceived the remedy or process, without suggestion or intervention by the defendant in that particular, defendant is not liable for such error." (16) "That if defendant acted under the honest belief that the plaintiff was guilty of the offense of larceny, with which he was charged, then the jury must find for the defendant." (19) "The unconditional delivery by the plaintiff to the defendant of the plans and drawings which plaintiff and Rousseau had made for the building he was erecting, made them the special property of the defendant; and the subsequent tearing and taking such plans and drawings by plaintiff without the consent of the defendant was a trespass, and if secretly done, and without calling attention of any one to the act, constituted probable cause for defendant to cause his arrest. In such case the jury must find for the defendant." (23) "That if the defendant had contracted with and paid Rousseau for making the plans, and to superintend Lunsford's building; that the plaintiff, having demanded additional compensation of Lunsford, and being refused, went without Lunsford's consent and took and destroyed the front elevation, with the intention to deprive Lunsford of his property, or to injure Lunsford,-then the court charges the jury that this was probable cause for causing plaintiff's arrest on the charge of larceny, if defendant honestly believed that these facts constituted larceny, and the jury must find for defendant." (24) "That in considering defendant's conduct, even if the jury should believe the facts did not warrant the arrest of plaintiff, still the jury will make allowance for the excitement under which the prosecution for the alleged offense was instituted. The complainant cannot be required to act with the same impartiality and absence of prejudice in drawing his conclusions as to the guilt of the accused that a person entirely disinterested would deliberately do." The court refused to give each of the charges as asked, and to each refusal the defendant separately excepted. There was judgment for the plaintiff, and on this appeal the defendant assigns the various rulings of the lower court as error.

W. C. Ward, for appellant.

R. H. Pearson, for appellee.

MCCLELLAN J.

This is an action by Dietrich against Lunsford for malicious prosecution. The institution of a criminal prosecution by the latter, and its termination before suit brought, were admitted, or at least not controverted. In the trial the burden was on the plaintiff to show further both that that prosecution was malicious, and that it was instituted without probable cause. The proof of neither of these factors in the right of recovery would avail plaintiff in the absence of proof of the other. However malicious Lunsford may have been, he is not liable in this action if he had probable cause for bringing the charge against Dietrich; and, however his action was lacking in the basis of probable cause, he would not be liable unless actuated therein by malice. McLeod v. McLeod, 73 Ala. 42; Steed v. Knowles, 79 Ala. 446; Jordon v. Railroad Co., 81 Ala. 225, 8 South. Rep. 191; Lunsford v. Dietrich, 86 Ala. 250, 5 South. Rep. 461; Leyenberger v. Paul, 12 Ill.App. 635; Meysenberg v. Engelke 18 Mo.App. 346; Murphy v. Martin, 58 Wis. 276, 16 N.W. 603; Flickinger v. Wagner, 46 Md. 580. But while the absence of probable cause is not the equivalent of malice, and does not per se establish malice, yet it is evidence of malice to be considered by the jury, and may of itself justify a conclusion on their part that the motive of the prosecutor was malicious. Authorities supra, Railroad Co. v. Mitchell, 80 Ga. 438, 5 S.E. Rep. 490; Bozeman v. Shaw, 37 Ark. 160; Mowry v. Whipple, 8 R. I. 360; Dietz v. Langfitt, 63 Pa. St. 234; Straus v. Young, 36 Md. 246. Malice may also be inferred, of course, from the circumstances surrounding and attending upon the prosecution; the conduct and declarations of the prosecutor; his activity in and about the case; his efforts therein to secure some personal end. Indeed, the existence of malice being a fact which in the nature of things is incapable of positive, direct proof, it must of necessity be rested on inferences and deductions from facts which can be laid before the jury, and hence it is that a wide range is permitted in adducing attendant circumstances which tend to throw any light on the subject. We do not doubt but that the apparent anxiety of Lunsford after making the complaint to have Dietrich arrested, and his effort to that end at the depot, as a phase of the evidence tends to show, was such a circumstance, and was properly allowed to go to the jury. Straus v. Young, 36 Md. 246. Motes v. Bates, 80 Ala. 382. It is quite erroneous to suppose, as stated or implied in some of defendant's requests for instructions, that an element of the malice necessary to support this action consists in a desire to injure the party prosecuted. Any other motive than a bona fide purpose to bring the accused to punishment as a violator of the criminal law, or associated with such bona fide purpose, is malicious. There need be no personal ill will, hate, desire for revenge, or other base...