The Terre Haute and Indianapolis Railroad Company v. Mason

• Decision Date: 24 February 1897
• Docket Number: 17,922
• Citation: 46 N.E. 332,148 Ind. 578
• Parties: The Terre Haute and Indianapolis Railroad Company v. Mason
• Court: Indiana Supreme Court

46 N.E. 332

148 Ind. 578

The Terre Haute and Indianapolis Railroad Company v. Mason

No. 17,922

Supreme Court of Indiana

February 24, 1897

Rehearing Denied Oct. 27, 1897.

From the Clinton Circuit Court.

Reversed.

Bayless Guenther & Clark and T. J. Golden, for appellant.

John C Farber, Claybaugh & Claybaugh and Gavin, Coffin & Davis, for appellee.

OPINION

Howard, J.

This was an action by appellee against appellant, to recover damages for alleged malicious prosecution. The jury returned a special verdict by way of answers to eighty-one interrogatories submitted to them, and the court rendered judgment thereon in favor of the appellee. The errors assigned on the appeal are, (1) the overruling of the demurrer to the complaint; (2) the overruling of the motion made by appellant for judgment upon the verdict; (3) the overruling of the motion for a new trial, and (4) the overruling of the motion in arrest of judgment.

As to the first alleged error, it is perhaps enough to say that we find the complaint sufficient.

The appellee had been for about eleven years in the employment of the appellant company. During the last four or five years of which time he had been brakeman on one of appellant's passenger trains.

In February or March, 1894, it became known to the officers of the appellant company that certain tickets, known as "last end mileage books" were being wrongfully sold to a ticket broker in the city of St. Louis. After an investigation, the officials of the company became satisfied that the tickets so wrongfully disposed of had been taken up on trains running from Indianapolis to St. Louis, on which trains a Mr. John R. Wise was conductor, and the appellee was brakeman. It was the custom for this conductor, after collecting the tickets and "last end mileage books" from passengers, to turn the same over to his brakeman, the appellee, who enclosed the same in paper envelopes, sealing the envelopes and marking on the outside the number and kind of tickets in each. The whole were then placed by the brakeman in a large paper bag, and addressed to the proper accounting officers of the road. For some unexplained cause, the conductor was not in the habit of canceling the "last end mileage books" taken up by him and turned over with other tickets to the brakeman. It was these uncanceled last end mileage books that were found absent from the paper bags when the same were opened by the accounting officers; and these were also the tickets that were found in the hands of the ticket broker at St. Louis.

The officers of the appellant company do not seem to have suspected Conductor Wise; but, from information professed to have been obtained through detectives, their suspicion appears to have rested wholly upon appellee, the brakeman. The conductor had been in the service of the company and in charge of passenger trains for nearly twenty-seven years, and the utmost confidence was reposed in him. He was accordingly taken into the counsels of the officials of the company in pursuing their investigations in this matter, and was instructed to continue as heretofore to turn over tickets to the brakeman, the conductor, however, to keep an account of such tickets. The conductor's report, so kept, being compared with the tickets returned by the brakeman, it was discovered that last end mileage books so reported were not found in the sealed bags returned by the brakeman. After consulting with attorneys, and continuing the investigation for several weeks, the case was laid before the assistant prosecuting attorney of the city of St. Louis, who, in turn, laid it before the grand jury of said city.

On July 27, 1894, the grand jury returned an indictment against the appellee for fraudulently selling railroad tickets, and he was arrested on the same day and committed to jail, where he remained until July 30, 1894, when he gave bond for his appearance before the St. Louis criminal court, from day to day during the July term, 1894, and on the first day of each term thereafter to which said cause might be continued. On May 17, 1895, the appellee was tried by a jury of said court, and was duly acquitted and discharged.

On August 8, 1895, the appellee, having been refused reinstatement in his employment, or any compensation for loss sustained, brought this action to recover damages resulting to him by reason of the alleged malicious prosecution instituted by appellant.

For appellee to recover, it was necessary, besides his acquittal, for him to show that, at the time the prosecution was instituted against him, the appellant did not have probable cause for bringing such suit, and that the same was malicious. This is one of the cases in which a plaintiff must prove a negative. The action will not lie unless there was a want of probable cause, and such want of probable cause must therefore be shown by the plaintiff. The burden is not upon the defendant to show that there was such probable cause and that he acted without malice. If, however, the defendant does show the existence of such probable cause, or that there was no malice in bringing the suit, then, of course, even though it should turn out that the plaintiff had been acquitted of the charge, there could still be no recovery by him, unless for costs. Cooley, Law of Torts, 180.

It is true that before the action for damages can be successful, it must be shown that the plaintiff has been acquitted of the crime charged, or the action otherwise terminated in his favor. Such acquittal, together with the presence of malice and the absence of probable cause, is a necessary circumstance to justify the bringing of the action for damages. Cooley, Torts, 181. But the acquittal of the plaintiff has no further relation to the action for damages. The inquiry must, therefore, be, not whether the plaintiff was or was not guilty of the offense for which he was prosecuted, but whether, at the time when the prosecution began, there was or was not probable cause for bringing it, and whether the defendant acted with or without malice.

A mere belief, however, that probable cause exists, as said by Mr. Cooley, is not sufficient. "One may believe on suspicion and suspect without cause, or his belief may proceed from some mental peculiarity of his own; there must be such grounds of belief as would influence the mind of a reasonable person, and nothing short of this could justify a serious and formal charge against another. Still, some allowance must be made for the excitement under which prosecutions for supposed offenses against the complainant himself are almost necessarily instituted. The complainant cannot be required to act with the same impartiality and absence of prejudice in drawing his conclusions as to the guilt of the accused that a person entirely disinterested would deliberately do, any more than a person assaulted could be expected to judge of his danger with the like coolness and impartiality. And all that can be required of him is, that he shall act as a reasonable and prudent man would be likely to act under like circumstances." Cooley, Torts, 182.

We may think now, in the light of all the facts as since brought out and shown in the record, that an injustice was done to an honest man. We may even be of opinion that the appellant company did not fairly treat the brakeman after he had been acquitted of the charge against him. The appellant, even if unwittingly, had yet brought upon the appellee unmerited trouble, expense, and mortification. Confined in jail at first, and then placed under bond for nearly a year, as soon as he was acquitted, he went, as an honest man might do after his vindication, and asked to be returned to the favor of the company, and to the employment in which he had so long and so well served; but his advances were repulsed, and he was compelled to seek his livelihood elsewhere. This treatment may seem unjust. But that is a question of morals, and not of law. We are simply to consider whether, at the time the proceedings were instituted against him, there was probable cause for the action taken by the officers of the company. He was, indeed, duly acquitted of all charges. But, as already said, the question is not as to whether he was innocent or guilty. Neither is it a question as to whether the officers of the company acted fairly towards him after his acquittal. We have to go back of all this, and consider what the verdict shows as to whether, at the time of bringing the charges, the officials had probable cause for so doing, and acted without malice.

One who is charged with an assault and battery, or like offense, may show that, at the time of committing the act charged, he had good reason to believe, and did believe, that he was in danger of death or great bodily harm; and the fact that he was, at the time, not in any such danger will not make his defense bad, provided only, the circumstances were such as to show that he had then good reason to believe that he was in actual peril, which peril could be avoided only by the action taken by him. So, in a case of malicious prosecution, which is quasi criminal in its character, if the one charged with having instituted such prosecution can show that his conduct at the time was such as a...