Stansbury v. Fogle

• Decision Date: 18 February 1873
• Citation: 37 Md. 369
• Parties: JOHN S. STANSBURY v. STEPHEN M. FOGLE.
• Court: Maryland Court of Appeals

37 Md. 369

JOHN S. STANSBURY v. STEPHEN M. FOGLE.

Court of Appeals of Maryland

February 18, 1873

Appeal from the Superior Court of Baltimore City.

The facts are sufficiently stated in the opinion of the court.

Exception.--The plaintiff offered the following prayers:

1. If the jury shall believe from the evidence in the cause that the defendant instituted or caused to be instituted the prosecution under which the plaintiff was arrested maliciously and without probable cause, and shall further find that said prosecution is terminated, then their verdict must be for the plaintiff.

2. If the jury believe from the evidence that said prosecution was instituted, or caused to be instituted, by the defendant under such circumstances as would not have induced a reasonable and dispassionate man to believe that the plaintiff was guilty of the crime so charged against him then the jury may infer that the defendant was actuated by malice in instituting, or causing to be instituted, said prosecution, while it is competent for the jury to infer malice from a want of probable cause, the question whether the defendant was actuated by malice or not, is one to be determined upon the whole evidence; and if upon the whole evidence the jury believe that the defendant did not act maliciously, then their verdict must be for the defendant.

3. If the jury shall find a verdict for the plaintiff, they are at liberty to take into consideration all the circumstances of the case, and award such damages as will not only compensate the plaintiff for the wrong and indignity he has sustained in consequence of the defendant's wrongful act, but may also award exemplary or punitive damages as a punishment to the defendant for such wrongful acts.

The defendant offered the following prayers:

1. That in order to maintain the present action, it is necessary for the plaintiff to satisfy the jury that the alleged arrest commitment and imprisonment of the plaintiff were caused or procured by the defendant, and that the mere fact that the defendant testified before the committing justice, is not sufficient evidence that it was so caused or procured by him.

2. That it is further necessary for the plaintiff to satisfy the jury, that in respect to such arrest, commitment and imprisonment, (even if the jury should find that the defendant instituted or caused the same,) the defendant acted without reasonable or probable cause, and to constitute reasonable and probable cause, it is not necessary that the plaintiff should have been in fact guilty of the crime charged; but it is enough for the defendant's justification, if they find that he had reasonable ground to think that the plaintiff was guilty of the matter charged.

3. The burden is upon the plaintiff to prove that there was an absence of such probable cause for the prosecution as would justify an ordinarily prudent man in instituting the same and not upon the defendant to prove the contrary.

4. It is further necessary for the plaintiff to prove that the defendant acted with malice; and if the jury find that the defendant did not act maliciously in the premises, but all that he did, tending towards the imprisonment of the plaintiff, was done under the advice and direction of counsel, and without malice on his own part, then the verdict must be for the defendant.

5. That if the plaintiff sold and delivered to the defendant the articles mentioned in the bill of sale offered in evidence and represented to the defendant that he owned and had the right to sell said articles, and if upon the faith of the truth of said representation by the plaintiff, the plaintiff obtained from the defendant a certain gray horse, referred to in the commitment offered in evidence, and they find that said representation was not true, then there was probable cause justifying the charge upon which the plaintiff was committed, and the plaintiff cannot recover.

6. That the plaintiff is not entitled to recover, under the declaration in this case, any damages for injury resulting from contracting, while in jail, any contagious disease.

7. That in order to maintain the present action, it is necessary for the plaintiff (among other things) to satisfy the jury that the alleged arrest, commitment and imprisonment were caused by the defendant; and if they believe that the same were caused by Mr. Waterman, acting upon his own volition, and that the defendant did not authorize or ratify the same, then the mere fact that the defendant testified before the committing magistrate does not make the defendant responsible therefor in this action.

The court (Dobbin, J.,) granted the first and third prayers of the plaintiff as offered, and the second with the conceded addition in italics; it also granted the second, third, fourth and sixth prayers of the defendant and refused his first, fifth and seventh. To the rejection of his first, fifth and seventh prayers, the defendant excepted, as also to the granting of the prayers of the plaintiff. The verdict and judgment being for the plaintiff, the defendant appealed.

The cause was argued before BARTOL, C.J., MILLER, ALVEY and ROBINSON, JJ.

R. J. Gittings and A. W. Machen, for the appellant.

Three things were necessary to be established in order to enable the plaintiff to maintain his action, viz: that the prosecution was made or instigated by the defendant, that there was a want of reasonable and probable cause, and that the defendant was impelled by malice. The circumstances of this case made it peculiarly important that the first of these requisites should be attended to. It has been thus defined by the Supreme Court of the United States: "The plaintiff must prove, in the first place, the fact of the prosecution, and that the defendant was himself the prosecutor, or that he instigated its commencement." Wheeler v. Nesbitt, 24 How. 549.

In this present case it is clear, that the prosecution complained of in the declaration was neither begun nor instigated by the defendant. The only circumstance which could connect him with it at all was his attendance before the justice; and that being fully explained in the evidence, the jury ought not to have been left to infer that it was conclusive against him. The defendant's first prayer should, therefore, have been granted. There was error in granting the plaintiff's first prayer. But certainly the defendant was, at least, entitled to have the question whether or not the alleged arrest, commitment and imprisonment--the grievance complained of in the declaration--were caused by him, presented to the jury. Weston v. Beeman, 27 Law Journ. N. S. Exch. 57; Burnap v. Albert, Taney, 244.

The jury were not properly instructed in regard to the other necessary ingredient of want of reasonable and probable cause. The rule of the common law, that it is for the judge, and not the jury, to determine whether the facts amount to probable cause, is stated with great clearness in Buller's Nisi Prius, 14, upon the authority of Golding v. Crowle, Sayer, 1; where a verdict for the plaintiff was set aside, "not as a verdict against evidence, but as a verdict against law." It has been repeatedly affirmed since. Boyd v. Cross, 35 Md. 194; Munns v. Dupont, 3 Wash. C. C. 37; Douglas v. Corbett, 6 El. & Bl. 511; Walker v. R. R. Co. L. R. 5 C. P. 640; Lister v. Perryman, L. R. 4 Eng. & Ir. App. 521; Davis v. Hardy, 6 B. & C. 231; 1 Taylor's Ev. sec. 26.

Here, even had the action been framed (as in Weston v. Beeman, 27 L. J. N. S. Exch. 57; it was,) upon a malicious adoption and prosecution of a proceeding begun by a third party, there was, as that case shows, no want of probable cause on the defendant's part--brought into the affair at the stage and under the circumstances in which he was--for doing all that he did do. Brooks v. Blaine, 39 Law Journ. N. S. C. P. 1; Gibson v. Veasey, 15 Law Times, N. S. 586; Gilbert v. Emmons, 42 Ill. 144.

But, upon another, distinct ground there was no want of probable cause. There was abundant evidence that the plaintiff was actually guilty of the charge upon which he was held and committed. That this fact is always a complete bar to any action for malicious prosecution is undeniable; the unsuccessful result of the criminal case being no criterion. Hailes v. Marks, 7 Hurl. & Nor. 61, 63, 64.

There was ample evidence to support the defendant's fifth prayer, and those facts made out such a prima facie case of false pretenses, that upon them a jury would be warranted in finding the party guilty of the offense--Matthews Digest, 169. There was then probable cause.

An indictment lies for obtaining goods by false pretenses, where a party represents himself to be the owner of property which does not belong to him, and thus fraudulently induces the owner to sell the goods to him on credit. People v. Kendall, 25 Wend. 399.

To establish a case of false pretenses, it is not necessary that the representations made should have been the sole inducement; the rule being that it is sufficient if the pretenses proved to be false had such a material effect in procuring the credit, or inducing the party defrauded to give up his property, that without the existence of its influence upon his mind he would not have parted with it. People v. Haynes, 11 Wend. 566; Reg. v. Jennison, 9 Cox C. C. 158. It is clear therefore, that the defendant's fifth prayer ought to have been granted. Reg. v. Naylor, 10 Cox C. C. 149; Reg. v. Fry, 7 Cox C. C. 394.

It was the more important that the court should properly instruct the jury as to what would amount in law to want of probable cause, for the reason, that, by granting the plaintiff's second prayer, the court, expressly authorized them to infer malice from the want of probable cause. Hence, not only in...