Ryan v. Orient Insurance Co.

• Decision Date: 04 January 1923
• Parties: CORA E. RYAN v. ORIENT INSURANCE COMPANY AND LYMAN S. HAYES
• Court: Vermont Supreme Court

119 A. 423

96 Vt. 291

CORA E. RYAN v. ORIENT INSURANCE COMPANY AND LYMAN S. HAYES

Supreme Court of Vermont

January 4, 1923

October Term, 1922.

ACTION OF TORT for malicious prosecution. Plea, the general issue. Trial by jury at the March Term, 1921, Chittenden County Chase, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the case. Reversed, and judgment for the defendants to recover costs.

Motion overruled.

M G. Leary and C. H. Darling for the defendants.

V A. Bullard, C. Bertrand Race (Albany, N.Y.), and Butler, Kilmer & Corbin (Saratoga Springs, N.Y.), for the plaintiff.

Present: WATSON, C. J., POWERS, TAYLOR, MILES, and SLACK, JJ.

OPINION

TAYLOR

The plaintiff has recovered judgment against both defendants on the verdict of a jury in an action for malicious prosecution. The case is here for review on the defendants' exceptions to the overruling of a motion for a directed verdict, and on certain exceptions to the charge and to the rulings of the court on matters of evidence.

The plaintiff came to Burlington from the State of New York in the fall of 1912 and opened a millinery shop in a small store hired for the purpose. In December, 1912, she procured insurance on the contents of the store from the Orient Insurance Co., through its local agents, Powell & Marks. About three o'clock in the morning of January 16, 1913, a fire broke out in the store which entirely destroyed the contents. On receiving notice of the fire the defendant company referred the matter of the adjustment of the loss to a special agent in the New England territory, who procured the services of defendant Hayes, a private adjuster not in the general employ of the defendant company, to investigate the loss. Hayes interviewed the plaintiff and made certain investigations respecting the validity of her claim. The plaintiff went to Albany, N.Y., about the first of February. Upon or shortly after her arrival at Albany she took up the matter of her claim with the agents of the company and later employed an attorney there who was entrusted with the adjustment of the loss. While the negotiations were pending, Mr. Hopkins, the State's attorney of Chittenden County, filed an information against the plaintiff charging her with having set the fire, which is the prosecution on which this suit is based. At this time the plaintiff was still out of the State. The State's attorney applied to the Governor for requisition, but upon consideration the application was denied. Both Hayes and the company were aware of these facts. Subsequently steps were taken involving action on the part of both defendants to bring about plaintiff's return to the State where she could be arrested on the warrant that was out against her. Advantage was taken of a provision of the policy which required her to appear for examination at a time and place appointed by the company. Plaintiff came to Burlington to keep the appointment and was arrested on the arson charge. She was later tried on the information and acquitted.

The principal questions raised by the motion for a directed verdict are: (1) Whether the defendants, or either of them, were in law responsible for the institution or continuance of the original proceeding complained of; (2) if so, whether there was evidence showing want of probable cause to believe that the prosecution could succeed; and (3) whether the necessary element of malice was present. In fact, the controlling questions are only two, for the malice that will support the action, though a separate question of fact, may be inferred prima facie from the proof of the want of probable cause. Barron v. Mason, 31 Vt. 189. In other words, want of probable cause affords evidence of malice; but want of probable cause and malice are independent facts, each essential to the cause of action, and proof of the one will not establish the other as a matter of law. Carleton v. Taylor, 50 Vt. 220, 229; Driggs v. Burton, 44 Vt. 124, 148; Closson v. Staples, 42 Vt. 209, 222, 1 A. R. 316.

A question of vital importance in the administration of the criminal law is raised by the first ground of the motion. The question has never arisen in this jurisdiction, although it has with some frequency been before the courts of other jurisdictions in recent years. The decided cases generally deal with prosecutions based upon the affidavit or complaint of a private individual, in which case the person making the affidavit is usually regarded as the prosecutor and held liable as such. But under the present procedure for instituting criminal prosecutions in this State, where the complaint is made by a prosecuting officer elected for the purpose, a different situation arises. Prima facie the prosecution is instituted and conducted by the public prosecutor, and the plaintiff in a subsequent suit for malicious prosecution has the burden of showing that the defendant in such suit was directly responsible for the institution or continuance of the proceedings complained of. It is of public concern that a citizen having reason to believe, or even suspect, that a crime has been committed be permitted to direct the attention of the prosecuting officer towards its investigation, without exposure to the peril of being held liable for malicious prosecution in case of a failure of conviction. The criminal law does not enforce itself, but requires the agency of some informant to put it in motion. It is sometimes said that the action for malicious prosecution is not favored in law, and hence has been hedged about by limitations more stringent than those in the case of almost any other act causing damage to another. A recovery is allowed only when the requirements limiting it have been fully complied with. Especially is this so where the suit is brought for the institution of criminal proceedings against the plaintiff, as public policy favors the exposure of crime, which a recovery against a prosecutor obviously tends to discourage. 18 R. C. L. 11, and cases there collected. The principles governing the rights and liabilities of the parties to an action for malicious prosecution are a compromise between the right of the individual to be free from arrest or prosecution upon a charge of which he is innocent and the right of the community to be protected from crime. Burnham v. Collateral Loan Co., 179 Mass. 268, 60 N.E. 617.

While a defendant in an action for malicious prosecution is sufficiently a prosecutor to sustain an action against him, if the prosecution to which the plaintiff is subjected is instituted by the State's attorney at the defendant's instance and request, something more is required than that the defendant be shown to have given information which set the machinery of the law in motion. Burnham v. Collateral Loan Co., supra. A defendant has not "caused a prosecution" in the sense that renders him liable when he acts only in subordination to the prosecuting attorney and under the latter's directions; nor when he states the bare facts as to the plaintiff's conduct to such attorney, leaving him to judge of the propriety of proceeding with the charge, where the attorney does not act in any way under the direction of the informant or the influence of the information thus received. The cases are in accord in holding that to sustain an action for malicious prosecution, where the proceeding complained of was begun by another, it must affirmatively appear as a part of the plaintiff's case that the defendant was the proxi- mate and efficient cause of such proceeding. McClarty v. Bickel, 155 Ky. 254, 159 S.W. 783, 50 L.R.A. (N.S.) 392; Thienes v. Francis, 69 Ore. 165, 138 P. 490; Malloy v. Chicago, etc., R. Co., 34 S.D. 330, 148 N.W. 598; Western Nat. Bk. v. White, 62 Tex. Civ. App. 374, 131 S.W. 828.

The necessity that the defendant be shown to be the efficient cause of the prosecution to establish liability is variously expressed in the cases. Thus, it must be shown that the prosecuting officer acted under the direction or influence of the defendant, Burnham v. Collateral Loan Co., supra; that the prosecution proceeds by virtue of his authority or procurement, Knauer v. Morrow, 23 Kan. 360; that the prosecution was instituted at the instigation of the defendant, Cox v. Lauritsen, 126 Minn. 128, 147 N.W. 1093; that the defendant was responsible for the institution or continuance of the proceedings complained of, 18 R. C. L. 17; that the defendant's advice or procurement was the proximate cause of the proceeding, note Ann. Cas. 1918A, 487. The late Justice Jaggard in his article on "Malicious Prosecution" (26 Cyc. 17) deduces this rule from the cases: "To sustain the action it must affirmatively appear as a part of the case of the party demanding damages that the party sought to be charged was the proximate and efficient cause of maliciously putting the law in motion."

In Florida East Coast R. Co. v. Groves, 55 Fla. 436, 46 So. 294, the agent of a corporation, believing that a crime had been committed, stated all the material facts bearing on the transaction, so far as he was informed of them, to the county prosecuting officer with the names of witnesses who could give more detailed information, leaving the officer to act on his own judgment whether there should be a prosecution. It was held that the corporation would not be liable for a malicious prosecution, on the ground that the agent only did his duty in laying the facts before the prosecuting attorney. In Christy v. Rice 152 Mich. 563, 116 N.W. 200, the defendant applied to the prosecuting attorney to institute a prosecution against the plaintiff for perjury and was denied a warrant until the attorney had made an independent investigation of the facts and was informed that the latter would act...