Sasse v. Rogers

• Decision Date: 05 June 1907
• Docket Number: No. 6,033.,6,033.
• Citation: 40 Ind.App. 197,81 N.E. 590
• Parties: SASSE v. ROGERS.
• Court: Indiana Appellate Court

40 Ind.App. 197

81 N.E. 590

SASSE

v.ROGERS.

No. 6,033.

Appellate Court of Indiana, Division No. 2.

June 5, 1907.

Appeal from Circuit Court, Vanderburgh County; Louis O. Rasch, Judge.

Action by Solomon W. Rogers against Theodore Sasse. From a judgment for plaintiff, defendant appeals. Reversed, and motion for new trial granted.De Witt Q. Chappell and L. T. Shanner, for appellant.

COMSTOCK, C. J.

The complaint charges that the defendants therein, Annette Sasse and Theodore Sasse, on the 7th day of July, 1902, without probable cause, caused the plaintiff to be arrested on a warrant and brought before a certain justice of the peace having jurisdiction in the premises, on the charge of trespassing; that the appellee changed the venue of said cause to another certain justice of the peace; that on the trial of said cause appellee was by the judgment of said court acquitted and discharged; “that in consequence of said arrest and giving bond, incurred an expense of $15 and costs and counsel fees in defending himself, and was prevented for five days from transacting his business.” Judgment for $1,000 is demanded. The appellant and his codefendant below, Annette Sasse, answered said complaint by a general denial. At the close of appellee's evidence, the defendant Annette Sasse moved the court for a peremptory instruction to the jury in her behalf, which motion was sustained, and a verdict returned for her, and judgment accordingly on the verdict was rendered in her favor. Appellant, at the close of the trial, moved the court to instruct the jury to return a verdict for him; but the court overruled this motion, and appellant excepted. The jury thereafter returned a verdict against appellant for $500, and the court rendered judgment thereon for said sum.

The error assigned and discussed is the action of the court in overruling appellant's motion for a new trial. Among the reasons set out in this motion are that the damages assessed by the jury are excessive, and that the court erred in giving to the jury certain instructions. When a person prosecutes another, or causes him to be prosecuted, for an offense of which he is innocent, when he acts maliciously and without probable cause, he is guilty of a tort, and the person so prosecuted may maintain an action for malicious prosecution. To sustain such action the plaintiff much show: First, that he has been prosecuted; second, that the defendant was the prosecutor or instigator of the prosecution; third, that the defendant had no probable cause to do so; fourth, that he acted with malice; fifth, that the prosecution has terminated in favor of the plaintiff. Whether the defendant had probable cause is a question of law for the court. The other facts are to be determined by the jury. Cottrell v. Cottrell, 126 Ind. 184, 25 N. E. 905, and cases cited. A sufficient termination of the prosecution in favor of the plaintiff is established when he is discharged by a magistrate, either because of insufficiency of evidence, or because the defendant withdrew the prosecution or failed to make any complaint or to appear. Venafra v. Johnson, 10 Bing. 301; McDonald v. Rook, 2 Bing. N. C. 217; Sayles v. Briggs, 4 Metc. (Mass.) 421;Moyle v. Drake, 141 Mass. 238, 6 N. E. 520;Brown v. Randall, 36 Conn. 56, 4 Am. Rep. 35, and cases cited. “The lack of probable cause is not shown by the abandonment of the prosecution by the prosecutor, by the dismissal of the charge by the prosecutor, by the voluntary discontinuance of the prosecution, or by dismissal for want of prosecution.” Cockfield v. Braveboy, 2 McMul. 270, 39 Am. Dec. 123;Flickinger v. Wagner, 46 Md. 580, and cases cited.

Appellant consented to the discontinuance of the case, because, as he stated, he did not wish the plaintiff to be punished. The following facts are shown without contradiction: Theodore Sasse, at the time of the trial, was a man about 75 years of age, residing with his wife, Annette Sasse, on a farm owned by her in Gibson county, Ind. His wife had another separate tract of land more than 1 1/2 miles away from the home place. This tract of land lies east of the Evansville & Indianapolis Railroad, and had a meadow thereon. Appellant's wife, for 15 years or more, had been confined to her home and unable to walk by reason of rheumatism. The appellant and his two...