McElroy v. Catholic Press Co.

• Decision Date: 06 June 1912
• Parties: McELROY v. CATHOLIC PRESS CO.
• Court: Illinois Supreme Court

254 Ill. 290

98 N.E. 527

McELROY

v.CATHOLIC PRESS CO.

Supreme Court of Illinois.

April 18, 1912.

Rehearing Denied June 6, 1912.

Appeal from Appellate Court, First District, on Appeal from Circuit Court, Cook County; Richard S. Tuthill, Judge.

Action by Ellen McElroy against the Catholic Press Company. From a judgment of the Appellate Court affirming judgment for defendant, plaintiff appeals. Affirmed.

Whitman & Horner (Lloyd C. Whitman and T. B. Cosgrove, of counsel), for appellant.

Winston, Payne, strawn & Shaw (John Barton Payne and Walter H. Jacobs, of counsel), for appellee.

CARTWRIGHT, J.

[1] Ellen McElroy, the appellant, was employed to take subscriptions and make collections for the New World, published by the Catholic Press Company, the appellee. She was arrested on March 8, 1902, at the instance of Benjamin V. Hubbard, the manager of appellee, charged with embezzlementof moneys received in said employment. The magistrate held her in bond to the criminal court of Cook county, and she was subsequently indicted and tried in that court. She was convicted and sentenced to confinement in the penitentiary. She sued out a writ of error from this court, and the judgment was reversed and the cause remanded to the criminal court for another trial. McElroy v. People, 202 Ill. 473, 66 N. E. 1058. No mandate of this court was filed in the criminal court within two years from the time of making the final order, so that the proceeding was by statute considered as abandoned, and no further action could be had thereon. On April 22, 1907, the appellant brought this suit in the circuit court of Cook county against the appellee for malicious prosecution. The appellee pleaded not guilty and the statute of limitations of two years. The cause of action did not arise until April 24, 1905, at the expiration of two years from the rendition of the judgment of this court, so that the plea of the statute of limitations could not be sustained. The trial was on the issue formed by the plea of not guilty, and at the conclusion of the evidence for the appellant the court, on motion of the appellee, directed the jury to return a verdict of not guilty. The court gave the instruction as requested, and a verdict was rendered in accordance with it. An appeal was taken to the Appellate Court for the First District, where the judgment was affirmed, and the court granted a certificate of importance and an appeal to this court.

[2] The first alleged error mentioned in the brief is that the trial court improperly restricted the redirect examination of the plaintiff, and the first statement of the argument is that the ruling in question will be referred to later; but, as we do not find any subsequent reference to the subject, we regard the point as abandoned. However, on referring to the abstract, we find that the court refused to allow a re-examination as to Hubbard's testimony in the criminal case, and that there was nothing in the cross-examination which authorized such re-examination. The court did not err in the ruling.

The plaintiff offered in evidence the mandate of this court reversing the judgment of the criminal court, and the court admitted it solely for the purpose of showing the final termination of the criminal prosecution, but refused to admit it generally for the purpose of rebutting any inference of probable cause arising from the conviction of the plaintiff in the criminal court. This ruling and the direction of the court to return a verdict of not guilty raise the question as to the effect of the conviction of the plaintiff as evidence of probable cause for the prosecution, in view of the fact that the judgment was subsequently reversed by this court on the writ of error.

[3][4][5][6] Two facts are essential to sustain an action for malicious prosecution: First, malice; and, second, want of probable cause. Leidig v. Rawson, 1 Scam. 272,29 Am. Dec. 354;Jacks v. Stimpson, 13 Ill. 701;Harpham v. Whitney, 77 Ill. 32. It was therefore incumbent on the plaintiff to prove that the defendant acted, in causing her arrest, both maliciously and without probable cause, which must concur as grounds for the action. There was evidence for the plaintiff tending to prove that the prosecution against her was instituted for the purpose of collecting an alleged debt, and that Hubbard was willing to put an end to the prosecution on the payment of a sum somewhat in excess of the amount that was claimed to be due. This was evidence tending to prove that the prosecution was malicious, since a prosecution with any other motive than that of bringing a guilty party to justice is malicious as a matter of law. Krug v. Ward, 77 Ill. 603. There was also evidence tending to show that the prosecution was instituted because the plaintiff was planning to establish a Catholic home for the friendless and refused to permit it to be established under the patronage of the New World or to allow Hubbard to take the credit of the proposed charity. This evidence would have entitled the plaintiff to submission of the question of malice to the jury, but there was the further necessary element of a want of probable cause to justify a verdict of guilty. The existence of malice did not tend to prove a want of probable cause, for, although malice may be inferred from a want of probable cause, the absence of probable cause cannot be inferred from malice. Brown v. Smith, 83 Ill. 291. If the judgment of conviction in the criminal court was prima facie evidence of the existence of probable cause as a matter of law, and there was no evidence tending to overcome the presumption arising from such conviction, it was not error for the court to direct a verdict of not guilty.

The expressions of different courts on the question of the force and effect of a judgment of guilty in a criminal proceeding before a competent court having jurisdiction, which has been reversed on appeal or error, are quite dissimilar; but in the great majority of cases the disagreement is verbal rather than substantial, and in practical effect the decisions have been the same. In some cases it has been said, in general terms, that the judgment of conviction is conclusive notwithstanding it was reversed by an appellate tribunal; but in nearly all of the cases it has either been said that such a judgment is prima facie evidence of probable cause, or that it is conclusive unless impeached by evidence of fraud, false testimony, or other unfair or unlawful means-and the two statements practically mean the same thing. That which is prima facie evidence of a fact may be overcome by contrary evidence, and a presumption which may be destroyed by evidence of fraud, false testimony, or other unfair or unlawful means is not conclusive. The Supreme Court of the United States considered the question in Cresent City Life Stock Landing & Slaughterhouse Co. v. Butchers' Union Slaughterhouse & Live Stock Landing Co., 120 U. S. 141, 7 Sup. Ct. 472, 30 L. Ed. 614, but did not find it necessary to define the rule with accuracy. There are some general observations at the conclusion of the opinion which have been quoted in other cases, where the court states the foundation of the rule in public policy in vindication of the dignity and authority of judicial tribunals and the doctrine that neither misconduct nor demerit can be imputed to the court, and that there is an invincible presumption of the law that a tribunal acting within its jurisdiction acted impartially and honestly. The opinion of the court as to the proper rule had previously been given, and what was said afterward related to the particular question in that case: Whether the Louisiana court had given due effect to the decree of the Circuit Court of the United States. In considering the rule of law itself, the court said that it was not material to define it with precison and to attempt to state with accuracy the precise effect to be given to a judgment or decree of a court as proof of probable cause under all circumstances, because the decree of the Circuit Court of the United States had been adjudged by the Louisiana Supreme Court to be of no effect whatever as evidence of probable cause. The action was by the Butchers' Union...