Satz v. Koplow

• Decision Date: 20 December 1979
• Docket Number: No. 2-1178A408,2-1178A408
• Citation: 397 N.E.2d 1082
• Parties: Arnold SATZ, Appellant-Defendant, v. Leonard KOPLOW, Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 1082

397 N.E.2d 1082

Arnold SATZ, Appellant-Defendant, v. Leonard KOPLOW, Appellee-Plaintiff.

No. 2-1178A408.

Court of Appeals of Indiana, Fourth District.

Dec. 20, 1979.

Mark W. Gray, Howard J. DeTrude, Jr., Peter G. Tamulonis, Kightlinger, Young, Gray & DeTrude, Indianapolis, for appellant-defendant.

Joe Tipton, Irwin B. Levin, Dillon, Hardamon & Cohen, Indianapolis, for appellee-plaintiff.

CHIPMAN, Judge.

Defendant-appellant Arnold Satz appeals from a jury verdict in the Marion Superior Court holding him liable under plaintiff-appellee Leonard Koplow's suit for malicious prosecution. Satz essentially challenges the sufficiency of the evidence on two elements of the malicious prosecution tort, the admission of pleadings from the underlying suit, the giving of an instruction and the amount of damages. We find no error and affirm.

FACTS

The facts most favorable to appellee Koplow are as follows: Satz and Koplow were merchants who had adjacent stores at 38th and Meridian Streets in Indianapolis. It was Koplow's practice to hire off-duty Indianapolis On May 8, 1970, Robert Snow was employed by Koplow in this capacity. While in Koplow's store Snow observed Satz strike another car with his car and then drive away. Later, on the way to dinner, Snow went into Satz's store to tell him to contact the owner of the car he had struck. An altercation arose and Snow handcuffed Satz and dragged him to the police car parked outside. Satz was arrested and charged with taunting a police officer and being a disorderly person. He was released on bail later that night.

officers as security guards in his store. The officers were always in uniform.

Upon arriving home Satz called Roland Koplow, Leonard Koplow's brother and employee. In response to Satz's question, Roland said neither he nor Leonard had sent Officer Snow to Satz's store.

Shortly thereafter Satz wrote letters to Koplow and Mary Lugar. The letter to Koplow said, "ferment and hatred originated on your premises" and made reference to the abuse of civil liberties in Nazi Germany. In the letter to Lugar he briefly described the incident and said he was "considering offering my experience and the facts thereof to a national publication."

Criminal charges against Satz were dropped, over Snow's protest, when Satz signed a release relieving the City of Indianapolis from liability. Nevertheless, Satz sued the City, Snow and Koplow. The jury found for Koplow but against Snow and the City. The judgment against the City was eventually reversed by the Indiana Supreme Court, City of Indianapolis v. Satz, (1978) Ind., 377 N.E.2d 623.

Koplow subsequently brought this action for malicious prosecution against Satz. The jury awarded Koplow $15,000 compensatory and $500 punitive damages. Satz is appealing that judgment.

ISSUES

We have restated the issues as follows:

I. Was there sufficient evidence to prove the element of lack of probable cause?

II. Was there sufficient evidence to prove the element of malice?

III. Were pleadings from the original action properly admitted into evidence?

IV. Should the jury have found for Satz on his advice of counsel defense?

V. Did the court correctly instruct the jury on the attorney-client relationship in the context of a malicious prosecution suit?

VI. Were the damages excessive?

In a malicious prosecution action the plaintiff must prove:

1. The defendant instituted or caused to be instituted a prosecution against the plaintiff,

2. The defendant acted maliciously in doing so,

3. The prosecution was instituted without probable cause,

4. The prosecution terminated in plaintiff's favor. Yerkes v. Washington Manufacturing Co., (1975) 163 Ind.App. 692, 326 N.E.2d 629; Barrow v. Weddle Brothers Construction, (1974) 161 Ind.App. 601, 316 N.E.2d 845; Cassidy v. Cain, (1969) 145 Ind.App. 581, 251 N.E.2d 852. The parties agree only the elements of lack of probable cause and malice are in dispute.

I. PROBABLE CAUSE

Appellant Satz argues the record is devoid of any evidence which shows a lack of probable cause. He also argues the trial court's denial of Koplow's motions for judgment on the evidence in the underlying suit conclusively establish probable cause. We do not agree with either contention.

In deciding the first of Satz's arguments we are cognizant of our standard of review. We may reverse only when the evidence leads to one conclusion, and that conclusion is contrary to the one reached by the trial court. Commercial Credit Corp. v. Ensley, (1970) 148 Ind.App. 151, 264 N.E.2d 80, 84.

" Probable cause exists when from an apparent state of facts, found to exist, a reasonably intelligent and prudent person would be induced to act as did the person who is charged with the burden of having probable cause to act." Commercial Credit Corp. v. Ensley, supra; Cassidy v. Cain, supra. More simply stated, the inquiry is whether Satz acted reasonably in believing Koplow was somehow responsible for the tortious actions of Officer Snow. There is sufficient evidence to sustain a negative response to this question.

In his brief Satz correctly points up that the existence and scope of an employment relationship is generally a question of fact. The facts most favorable to appellee Koplow show Snow was acting as a private citizen at the time of his altercation with Satz. He was on his dinner break and was not acting under Koplow's direction. Koplow did not even know where Snow was when the incident occurred. The gist of these facts were made known to Satz during his telephone conversation with Roland Koplow on the night of the arrest. It was the jury's duty to decide whether Satz had a reasonable belief that Koplow was liable. Stewart v. Sonneborn, (1879) 98 U.S. 187, 25 L.Ed. 116; Treloar v. Harris, (1917) 66 Ind.App. 59, 117 N.E. 975. Their verdict indicates they found a lack of probable cause. Applying our standard of review, the evidence fails to convince us that the jury's conclusion was erroneous.

Appellant Satz also argues probable cause was established as a matter of law when the judge denied Koplow's motions for judgment on the evidence at the original trial. ¹ We do not agree with this assertion. A ruling on a T.R. 50 motion potentially encompasses many considerations and the record gives us no clue as to the reasons for the court's denial of these motions. The authorities cited by appellant lend no support. Restatement (Second) of Torts § 663 states that a discharge of an accused by a magistrate at a preliminary hearing establishes a lack of probable cause for purposes of a later malicious prosecution suit. Gallucci v. Milavic, (1958) Fla., 100 So.2d 375, is to the same effect. These authorities, however, involve a Criminal proceeding in which a primary purpose is to determine the existence of probable cause. They are therefore distinguishable from this case.

II. MALICE

For his second argument Satz contends there is no probative evidence in the record to establish the essential element of malice. We consider this argument in light of the traditional standard of review enunciated previously. Commercial Credit Corp. v. Ensley, supra. Malice "in fact" must be shown here; malice "in law" such as is required in defamation actions is not sufficient. Prosser Torts (4th ed. 1971).

The jury could have properly inferred malice from a number of different aspects of the evidence. Malice may be inferred from a lack of probable cause. Stivers v. Old National Bank in Evansville, (1970) 48 Ind.App. 196, 264 N.E.2d 339. As we have decided, Satz lacked probable cause to bring the original suit. There was also evidence of bad feeling between Satz and Koplow. In December 1969, the two men involved themselves in a shoving match over parking space in front of their stores. Although " personal hatred or revenge" is not necessary to prove malice, Pontius v. Kimble, (1914) 56 Ind.App. 144, 104 N.E. 981, 981-82, we have found no authority, nor has appellant cited any, which prohibits the consideration of personal animosity in establishing malice. Appellant's argument that the December 1969 incident was too "remote" and "all but forgotten" does not persuade us. Only eight months passed between December 1969 and the filing of the original suit. During this time the parties were apparently angry and did not speak to each other. We think the jury could have properly inferred malice from this evidence. Finally the letters written by Satz to Koplow and Mayor Lugar shortly after the altercation in May 1970 are probative evidence of malice. Satz claims the letters show only emotional upset, "grief and anguish" over the incident. Koplow describes the letters as "vicious and hateful." Although neither characterization is entirely accurate, the jury easily could have inferred malice from the letters. We therefore conclude there is sufficient evidence to support the element of malice.

III. ADMISSION OF PLEADINGS

At trial pleadings from the original action were admitted into evidence and parts of them were read to the jury by Koplow's attorney. Satz contends these pleadings were irrelevant and served only to prejudice the jury. Despite the vigor with which this argument is presented, Satz has provided us with no authority to support his position. However, the law is clear and well established on this point. A plaintiff in a malicious prosecution action may read into evidence the defendant's pleadings from the original trial. Winemiller v. Thrash, (1890) 125 Ind. 353, 25 N.E. 350.

IV. ADVICE OF COUNSEL

The advice of counsel defense is an absolute defense to a malicious prosecution action. To establish the defense a defendant must show that before commencement of the original action he honestly and in good faith sought the advice of a reputable counsel to whom he gave a full and fair statement of all material facts. If the defendant then instituted the original action relying on the attorney's advice he cannot be held liable in a subsequent malicious prosecu...