Schott v. Indiana Nat. Life Ins. Co.

• Decision Date: 28 October 1914
• Parties: SCHOTT v. INDIANA NAT. LIFE INS. CO.
• Court: Kentucky Court of Appeals

169 S.W. 1023

160 Ky. 533

SCHOTT v. INDIANA NAT. LIFE INS. CO.

Court of Appeals of Kentucky.

October 28, 1914

Appeal from Circuit Court, Jefferson County.

Action by C. G. Schott against the Indiana National Life Insurance Company. From a judgment for defendant, plaintiff appeals. Affirmed.

Henry J. Tilford, of Louisville, for appellant.

Kohn Bingham, Sloss & Spindle, of Louisville, for appellee.

HOBSON C.J.

Early in the year 1910, a number of insurance companies doing business in Louisville learned that they were being defrauded as the result of a conspiracy of their agents to procure insurance upon the lives of unfit persons by false applications and answers, and by the substitution of healthy persons for examination in lieu of the unfit persons named in the applications. The companies employed attorneys to represent them and ferret out the frauds. Among the companies was the Indiana National Life Insurance Company. Dr. C. G Schott had made a number of medical examinations, and in the course of their investigation the attorneys saw Dr. Schott and he went with them to see some of the persons who had been examined, and assisted them in getting up the evidence in regard to the matter. Subsequently warrants were taken out in the city court against three insurance agents. Dr. Schott was summoned as a witness for the commonwealth, and in the city court the three agents were held over to answer any indictment that might be found against them by the grand jury. Dr. Schott was summoned to appear before the grand jury, and, as we understand the record, appeared before it as a witness. The grand jury returned indictments against the three agents, and also against Dr. Schott and Dr. Rogers. On the calling of the case in the circuit court, the commonwealth attorney dismissed the indictment as to Dr. Rogers. One of the insurance agents was sick when the case came on for trial; one pleaded guilty; and, the case being tried as to the third agent and Dr. Schott, the agent was found guilty, and Dr. Schott was acquitted. Afterwards he brought this suit against the Indiana National Life Insurance Company to recover damages charging that the prosecution against him was instituted by it maliciously and without probable cause. The defendant filed an answer controverting the allegations of the petition, and the case coming on for trial before a jury, at the conclusion of the evidence for the plaintiff, the court instructed the jury peremptorily to find for the defendant. The plaintiff's petition having been dismissed, he appeals.

The only question we deem it necessary to consider on the appeal is whether there was any evidence tending to show that the prosecution was without probable cause. In Newell on Malicious Prosecutions, p. 10, it is said:

"The want of probable cause is the essential ground of the action. * * * The burden of proof is upon the plaintiff to prove affirmatively, by circumstances or otherwise, as he may be able, that the defendant had no ground for commencing the prosecution."

Again on page 276 he says:

"Whether the circumstances alleged to show it probable are true and existed is a matter of fact, to be determined by the jury, but whether, supposing this to be true, they amount to probable cause is a question of law."

To same effect, see Marshall v. Maddock, Lit. Sel. Cas. 106; Yocum v. Polly, 1 B. Mon. 358, 36 Am. Dec. 583; Roberts v. Thomas, 135 Ky. 63, 121 S.W. 961, 21 Ann. Cas. 456; Hudson v. Nolen, 142 Ky. 824, 135 S.W. 414. In Burks v. Ferriell, 80 S.W. 809, 26 Ky. Law Rep. 37, we said:

"Even if appellee had actually been innocent of the offense charged, yet if appellant, when the warrant was obtained, had actually reasonable grounds to believe and did believe that appellee was guilty of the offense, he cannot be mulched in damages for having procured the warrant. If the law was otherwise, it would be a great hindrance and almost an impossibility to have the criminal law of the commonwealth enforced. Individuals would be afraid to put the criminal law in motion for fear that they would be made responsible in damages, if perchance it turned out that the party prosecuted was innocent."

What facts and circumstances amount to probable cause is a question of law. Whether they exist or not in any particular case where the evidence is conflicting is a question of fact to be determined by the jury. But, where there is no conflict in the evidence, whether the facts shown amount to probable cause is ordinarily a question of law for the court. Ahrens & Ott v. Hoeher, 106 Ky. 694, 51 S.W. 194, 21 Ky. Law Rep. 299; Metropolitan Life Ins. Co. v. Miller, 114 Ky. 754, 71 S.W. 921, 24 Ky. Law Rep. 1561; Provident, etc., Associated Society v. Johnson, 115 Ky. 84, 72 S.W. 754, 24 Ky. Law Rep. 1902; Faris v. Starke, 3 B. Mon. 4; Alexander v. Reid, 44 S.W. 211, 19 Ky. Law Rep. 1636; Moore v. Large, 46 S.W. 508, 20 Ky. Law Rep. 409.

In Garrard v. Willet, 4 J. J. Marsh. 630, this court said:

"When a grand jury, upon other testimony than that of the prosecutor alone, find an indictment to be a true bill, the presumption is prima facie that, as they, on their oaths, have said that the person indicted is guilty, the prosecutor had reasonable ground for the prosecution. Nevertheless, the law still presumes that the person indicted is innocent. But this presumption will not repel the inference that there was 'probable cause.' And consequently the final acquittal of the accused will not per se prove a want of 'probable cause.' "

To same effect, see Branham v. Berry, 4 Ky. Law Rep. 414; Jones v. L. & N. R. R. Co., 96 S.W. 793, 29 Ky. Law Rep. 946.

It remains to determine, under these authorities, whether there was...