Taylor v. Baltimore & O.S.W. Ry. Co.

• Decision Date: 04 January 1898
• Citation: 18 Ind.App. 692,48 N.E. 1044
• Parties: TAYLOR v. BALTIMORE & O. S. W. RY. CO.
• Court: Indiana Appellate Court

18 Ind.App. 692

48 N.E. 1044

TAYLOR

v.BALTIMORE & O. S. W. RY. CO.

Appellate Court of Indiana.

Jan. 4, 1898.

Appeal from circuit court, Sullivan county; W. W. Moffett, Judge.

Action by Thomas Taylor against the Baltimore & Ohio Southwestern Railway Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Jas. G. Pritchett and Briggs & Lindley, for appellant. W. H. De Wolf, E. W. Strong, and Gardiner & Gardiner, for appellee.

HENLEY, J.

Action by appellant against appellee to recover damages for alleged malicious prosecution. There was a trial by jury, and a special verdict returned. A motion for judgment by the appellant was overruled, and a similar motion by appellee was sustained, and judgment rendered against appellant, plaintiff below, for costs. From this judgment the appeal is prosecuted to this court. The only ruling of the lower court which appellant complains of here is the overruling of appellant's motion for judgment upon the special verdict. In this class of cases the prosecution must be shown to have been instituted maliciously and without probable cause. Paddock v. Watts, 116 Ind. 146, 18 N. E. 518;Seeger v. Pfeifer, 35 Ind. 13. It is also one of those cases founded upon a prosecution set on foot by the appellee for a wrong that affects the public, and therefore the appellee should stand on the footing of the most favored class of prosecutors. Adams v. Lisher, 3 Blackf. 241. Malice is a fact to be found by the jury, and, if the court by instructions undertakes to inform the jury what evidence is sufficient to establish malice, the court in doing so is invading the province of the jury, and the action of the court would be error. Allison v. State, 42 Ind. 354. Probable cause is a legal conclusion to be drawn by the court from the facts, and where the facts are found, and are beyond dispute, as is the case where a jury returns a special verdict, the question of whether the undisputed facts do or do not constitute probable cause is a pure question of law, to be decided by the court, and with which the jury has nothing to do, they having agreed upon the facts, and presented them to the court by their special verdict. Pennsylvania Co. v. Weddle, 100 Ind. 138;Cole v. Curtis, 16 Minn. 182 (Gil. 161); Stone v. Crocker, 24 Pick. 81;Grant v. Moore, 29 Cal. 644;Center v. Spring, 2 Iowa, 393;Cottrell v. Cottrell, 126 Ind. 181, 25 N. E. 905. The jury in this cause found that the prosecution of appellant was maliciously instituted by appellee....