Pennsylvania Co. v. Weddle

• Decision Date: 28 January 1885
• Docket Number: 11,585
• Citation: 100 Ind. 138
• Parties: The Pennsylvania Company v. Weddle
• Court: Indiana Supreme Court

100 Ind. 138

The Pennsylvania Company v. Weddle

No. 11,585

Supreme Court of Indiana

January 28, 1885

From the Bartholomew Circuit Court.

Judgment reversed.

S Stansifer, for appellant.

G. W Cooper, C. B. Cooper and M. D. Emig, for appellee.

OPINION

Elliott, J.

The questions in this case arise on the ruling denying appellant a new trial. The material facts which the evidence tended to establish are these: The appellee was arrested upon an affidavit made by James H. Mowatt and was cast into prison where he remained for thirteen days, and was then discharged without a trial. Mowatt had been employed, as is stated in answer to interrogatories propounded by the appellee, "about the middle of August, 1883, as a detective, for the purpose, in connection with the aid and assistance of the proper local police officers, of detecting, and to aid in procuring the punishment of persons not merely supposed by him, or other said officers, to be guilty of crimes against the property of defendant, but his employment and instructions were to investigate fully and fairly all the facts and circumstances, and to make report and only arrest upon the direction of the attorneys or officers of the corporation." Prior to Mowatt's appointment, February 6th, 1883, a box of shoes was stolen from appellant's cars, and the affidavit of Mowatt charged the appellee with the larceny and caused his arrest and imprisonment. The shoes were not stolen by the appellee, but were stolen by John Bradley and Sanford Osborn, who were convicted, upon their own confession, and sent to the State's prison. The thieves, after taking a number of shoes from the box, threw it and its contents into Flat Rock river. The river was then very high and the box was carried down and lodged upon an island from which the water receded as the river fell to its usual stage. John Ferguson and the appellee, while engaged in taking driftwood from the river, found the box. They made no concealment of that fact; they informed the first person they met that they had found a box of shoes; they carried some of them to town and gave notice to many persons of the finding, among others, to the judge of the circuit court. But while there was evidence tending to establish these facts, there was conflict upon some points, and there was also evidence tending to prove other facts favorable to the appellant.

There are several general propositions which are now well settled, and these propositions we state at the outset without amplifying them or applying them in detail to the evidence, for it is apparent from their statement that they exert a controlling influence upon the case in judgment:

First. An action for malicious prosecution, or for false imprisonment, may be maintained against a corporation. Evansville, etc., R. R. Co. v. McKee, 99 Ind. 519; American Ex. Co. v. Patterson, 73 Ind. 430; Goodspeed v. East Haddam Bank, 22 Conn. 530; Ricord v. Central Pacific R. R. Co., 15 Nev. 167; Edwards v. Midland R. W. Co., 1 Am. & Eng. R. R. Cases, 571; Iron Mountain Bank v. Mercantile Bank, 4 Mo.App. 505; Williams v. Planters' Ins. Co., 57 Miss. 759; Carter v. Howe Machine Co., 51 Md. 290.

Second. A corporation is responsible for the acts of an agent performed while engaged in the discharge of duties within the general scope of his agency, although the particular act was wilful and was not directly authorized. Evansville, etc., R. R. Co. v. McKee, supra; Louisville, etc., R. R. Co. v. Kelly, 92 Ind. 371; S.C. 47 Am. R. 179; Terre Haute, etc., R. R. Co. v. Jackson, 81 Ind. 19.

Third. A corporation that entrusts a general duty to an agent is responsible to an injured person for damages flowing from the agent's wrongful act, done in the course of his general authority, although in doing the particular act the agent may have failed in his duty to the principal, and may have disobeyed instructions. Story Agency, section 73; Higgins v. Watervliet, etc., R. R. Co., 46 N.Y. 23; S. C., 7 Am. R. 293; Evansville, etc., R. R. Co. v. McKee, supra; Pierce R. R. 277; 2 Rorer R. R. 821.

Fourth. A principal who selects an agent to detect and arrest offenders is responsible for the acts of the agent committed within the general scope of his employment, although the agent may have done an unlawful act and have arrested an innocent man. Evansville, etc., R. R. Co. v. McKee, supra, and authorities cited.

It was proper to permit the appellee to give in evidence the declarations of Mowatt made at the time he arrested the appellee. Two valid reasons support this conclusion: 1st. Where an act is competent, so, also, are the declarations of the persons engaged in its performance and constituting a part of the thing done. Creighton v. Hoppis, 99 Ind. 369; Baker v. Gausin, 76 Ind. 317. 2d. The declarations of an agent, made at the time he is actually engaged in the performance of an act within the line of his duty, are admissible against the principal. Trustees, etc., v. Bledsoe, 5 Ind. 133; Hudspeth v. Allen, 26 Ind. 165; Toledo, etc., R. W. Co. v. Goddard, 25 Ind. 185; Hynds v. Hays, 25 Ind. 31; Hunter v. Leavitt, 36 Ind. 141; Heller v. Crawford, 37 Ind. 279; 1 Greenl. Ev., sections 113, 114.

Evidence of the good character of the plaintiff, in actions for malicious prosecution, is competent. American Ex. Co. v. Patterson, 73 Ind. 430, vide p. 438; Blizzard v. Hays, 46 Ind. 166; Shannon v. Spencer, 1 Blackf. 526; Israel v. Brooks, 23 Ill. 526.

Evidence of information received by the person who institutes a prosecution for a criminal offence, before preferring the charge, and tending to establish the guilt of the person prosecuted, is competent for the purpose of enabling the jury to determine whether there was probable cause for the prosecution; but evidence of information received after the charge has been preferred is not competent for that purpose. Information, in order to be competent for this purpose, must have been imparted to the person who instigated the prosecution before he preferred the charge. The facts known to the person making the charge at the time it is preferred are the ones which exert a controlling influence, and not information subsequently received. In determining the question whether there was or was not probable cause, the influences which were at work at the time the prosecution was instituted are those which must control the investigation. "Probable cause," says the Supreme Court of Massachusetts, "is such a state of facts in the mind of the prosecutor as would lead a man of ordinary caution and prudence to believe, or entertain an honest and strong suspicion, that the person arrested is guilty." Bacon v. Towne, 4 Cush. 217, vide op. 238. Hilliard says: "Those facts and circumstances which were known to the prosecutor at the time he instituted the prosecution are to be alone considered, in determining the question of probable cause." 1 Hill. Torts 451. Much to the same effect is the statement of Professor Greenleaf: "And, in either case, it must appear that the facts, or so much of them as was sufficient to induce the belief, were communicated to the defendant before he commenced the prosecution or suit." 2 Greenl. Ev., section 454. In Galloway v. Stewart, 49 Ind. 156, it was held that the facts constituting probable cause must be known to the prosecutor at the time he prefers the charge, and it was said: "That the facts constituting probable cause must be known to the party preferring the charge, is expressly stated in some of the cases in this court, and is clearly implied in others."

The prosecution against the appellee was commenced when the affidavit was filed and the warrant issued. The authorities go farther, for they declare that the prosecution is so far set on foot as to give a cause of action when the affidavit making the charge is filed, even though no warrant was issued. Coffey v. Myers, 84 Ind. 105, and authorities cited. The cause of action was, therefore, vested in the appellee when the charge was preferred.

The case of Turpin v. Remy, 3 Blackf. 210, does not decide that it is essential to the maintenance of an action for a malicious prosecution to show that there was an arrest, but does decide that the action can only be maintained for the malicious prosecution of the plaintiff before some judicial officer or tribunal. This court has adopted the doctrine of Blackstone, Hilliard, and other text-writers, that it is not essential that an arrest should be made in order to create a cause of action, and in this it is well sustained by the adjudged cases. Coffey v. Myers, supra, and authorities cited; Stancliff v. Palmeter, 18 Ind. 321; Collins v. Love, 7 Blackf. 416; Stapp v. Partlow, Dudley (Ga.) 176; Closson v. Staples, 42 Vt. 209; S. C., 1 Am. R. 316.

In the well considered case of Elsee v. Smith, 2 Chitty R. 304, Bayley, J., said, in speaking of a party who prefers a criminal charge: "but if he falsely and maliciously, and without any probable cause, puts the law in motion, that is properly the subject of an action on the case." Our cases have, indeed, gone so far as to hold that an action for malicious prosecution will lie although no arrest could have been made. Lockenour v. Sides, 57 Ind. 360; S. C., 26 Am. R. 58; McCardle v. McGinley, 86 Ind. 538. This doctrine is well sustained by authority. Pedro v. Barrett, 1 Ld. Raymond, 81; Norris v. Palmer, 2 Modern 51; Closson v. Staples, supra; Marbourg v. Smith, 11 Kan. 554; Burnap v. Albert, Taney C. C. Dec. 244; Whipple v. Fuller, 11 Conn. 582; Cox v. Taylor, 10 B. Mon. 17; Easton v. Bank, etc., 31 Albany L. J. 63.

The appellant asked several instructions upon the subject of probable cause, and endeavored to secure from the court a declaration of the law upon the facts hypothetically assumed in the...