Pontius v. Kimble

• Decision Date: 24 April 1914
• Docket Number: No. 8298.,8298.
• Citation: 56 Ind.App. 144,104 N.E. 981
• Parties: PONTIUS v. KIMBLE.
• Court: Indiana Appellate Court

56 Ind.App. 144

104 N.E. 981

PONTIUS

v.KIMBLE.

No. 8298.

Appellate Court of Indiana, Division No. 1.

April 24, 1914.

Appeal from Circuit Court, Jay County; James Moran, Judge.

Action by Fred Kimble, by his next friend, Sheridan Bailey, against Allen Pontius. From a judgment for plaintiff, defendant appeals. Affirmed.

Snyder & Smith, of Los Angeles, Cal., for appellant. Smith & Fleming and Jacob F. Denney, all of Portland, for appellee.

FELT, J.

Suit for damages for malicious prosecution. A trial by jury resulted in a verdict and judgment in favor of appellee for $125, from which appellant appealed.

The only error assigned is the overruling of the motion for a new trial. The questions not waived by failure to present in the briefs relate to the giving to the jury of certain instructions by the court on its own motion.

[1][2] Objection is made to instructions 7 and 10 on the ground that they give an erroneous definition of malice, as applied to this case. That part of instruction No. 7 to which objection is urged reads as follows: “Malice is meant the doing of a wrongful act intentionally and without just cause or excuse therefor.” But, as part of the same instruction, the court also said: “As to whether malice exists in a cause such as you are trying is purely a question of fact for the jury to determine.”

Instruction 10 is as follows: “In the complaint it is charged that the defendant instituted and prosecuted a criminal prosecution against the plaintiff maliciously. In the legal sense, any wrongful act done willfully and purposely, and without just cause or excuse, to the injury of another, is, as against that person, malicious; and malice, in the sense of the law, does not presuppose personal hatred or revenge, but may be implied under certain circumstances from a totalwant of probable cause, or from gross or culpable omission to make suitable and reasonable inquiry, and both want of probable cause and malice must be shown to exist to entitle plaintiff to recover. Malice is a question of fact for the jury, who may infer it from a want of probable cause, though they are not bound to do so.”

The specific objections urged against these instructions are that they convey the idea of “legal malice,” to the “entire exclusion of the idea of malice in fact”; that, “in actions for malicious prosecution, malice in fact, or express malice, is an essential.” The instructions are good as against the objections urged. Taken as a whole, they gave the jury a correct idea of the question of malice. Appellant is in error in claiming that a suit for damages for malicious prosecution cannot be sustained without proof of “express malice.”

In Carey v. Sheets, 67 Ind. 375, 378, the court said: “To sustain an action for malicious prosecution, there must be proof of both malice and want of probable cause, and the burden is on the plaintiff to prove both these facts. It is not necessary, however, that express malice be shown. Malice may be inferred from want of probable cause, but whether malice if proved or not is a question for the jury, to be decided upon the evidence in each individual case.”

In Helwig v. Beckner, 149 Ind. 131, 133, 46 N. E. 644, the court said: “The court or jury trying the cause may, however, as a matter of fact, infer malice from the want of probable cause, but are not required to do so, as such inference does not necessarily follow from the want of probable cause.”

Instruction 10 is almost a verbatim copy of an instruction approved by the Supreme Court in Oliver v. Pate, 43 Ind. 132-136.

Appellant relies on the case of Kelso v. Kelso, 43 Ind. App. 115, 86 N. E. 1001.

In this case a wife sued the parent of her husband for damages for the alienation of the affections of her husband. The court held that proof that an act was done purposely and without just cause or legal excuse, to the injury of another, authorized the jury to infer malice, but did not compel such inference, and the case was reversed because of instructions which in effect took from the jury the right to determine the question of malice. The opinion is clearly limited to the facts of the case and to similar suits where the relation of parent and child is involved, and does not change the law, as...