Thelin v. Dorsey

• Decision Date: 08 March 1883
• Citation: 59 Md. 539
• Parties: WILLIAM T. THELIN and THE BALTIMORE AND OHIO RAILROAD COMPANY v. UPTON W. DORSEY.
• Court: Maryland Court of Appeals

59 Md. 539

WILLIAM T. THELIN and THE BALTIMORE AND OHIO RAILROAD COMPANY v. UPTON W. DORSEY.

Court of Appeals of Maryland

March 8, 1883

APPEAL from the Superior Court of Baltimore City.

The case is stated in the opinion of the Court.

First, Second, Third and Fourt Exceptions, not passed upon by the Court.

Fifth Exception.--At the close of the evidence the plaintiff offered the seven following prayers:

1. That if the jury find from the evidence, that the defendants instituted, or caused to be instituted, or aided or assisted in the institution or carrying on of the prosecutions under which the plaintiff was arrested, maliciously and without probable cause, and that the said prosecutions were terminated before the commencement of this action by the acquittal and discharge of the plaintiff, then the plaintiff is entitled to recover.

2. That probable cause, as used in the plaintiffs first prayer, means a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man in his belief, that the person accused is guilty of the offence of which he is charged.

3. That if the jury find that the defendants instituted or caused to be instituted, or aided or assisted in the institution or the carrying on of the prosecutions of the plaintiff on the charges set out in the narr., and that the circumstances connected with the transaction out of which said prosecutions arose, were not such as would induce a reasonable dispassionate man to believe the plaintiff guilty of the charges made against him, and induce such a man to have undertaken such prosecutions from public motives, then there was no probable cause for such prosecutions, and the jury may infer in the absence of sufficient proof, to satisfy them to the contrary, that said prosecutions were malicious in law, and if they so find, then their verdict must be for the plaintiff.

4. That if there was any material fact connected with the transaction out of which the criminal prosecution against Dorsey arose which was known to the defendants or to the persons through whom the jury may find the defendants communicated with the State's Attorney, to obtain his advice, and which was not communicated to the State's Attorney by design or otherwise; or, if the jury find that there was any material fact relating to said criminal charge against Dorsey, which the defendants might, by reasonable diligence, have discovered, and which was not disclosed to or known by the State's Attorney at the time his advice was obtained then his advice to the defendants is no defence in this action.

5. That even if the jury find that at the time the defendants took the advice of the State's Attorney, they disclosed to him all the facts relating to the criminal charge against Dorsey then known to them, and which they could by reasonable diligence have ascertained, yet if the jury find that after the defendants had obtained said advice, and before they had produced witnesses before the Grand Jury, the defendants knew, or by reasonable diligence, might have known any other material facts relating to said criminal charge, and that the defendants caused witnesses to appear before the Grand Jury without disclosing said other facts to the State's Attorney, then the advice of said State's Attorney constituted no defence in this action.

6. That if the jury shall find for the plaintiff the measure of damages is such an amount as they find will compensate the plaintiff for his actual outlay and expenses about his defence in the criminal trial, and for his loss of time and for the injury to his feelings, person and character by his arrest and prosecution, by reason of the defendants' wrongful act, and may also award exemplary or punitive damages as a punishment to the defendants.

7. That if the jury find from the evidences that the Balto. & Ohio R. R. Co., acting through Wm. T. Thelin, its auditor, and the said Thelin personally caused the search warrant offered in evidence in this case to be prepared by the counsel of the company, and said Thelin made the affidavit thereto maliciously and without any reasonable or probable cause, and under said warrant the plaintiff's premises were searched by officer Witters, and one Carter, a detective in the employ of the Balto. & Ohio R. R. Co., and no goods found, then the plaintiff is entitled to recover under the amended count in the declaration; and probable cause as herein used,--means such reasonable ground of suspicion supported by circumstances, sufficiently strong in themselves, as would warrant a cautious man in believing that some of the articles described in said search warrant were at the time in the possession of Mr. Dorsey.

And the defendants offered three prayers, which were granted, but are omitted as their insertion is deemed unnecessary. The defendants also filed, severally, the following exceptions to the granting of the plaintiff's prayers:

The defendant, William T. Thelin, specially excepts to the granting of the prayers offered on the part of the plaintiff, because there is no evidence in the cause legally sufficient to sustain the same as against the said defendant, and the said exception is made by the said defendant to the granting of the first, second, third, fourth, fifth, sixth and seventh prayers of the plaintiff, severally, and to the granting of each and every one of said prayers.

The defendant, the Baltimore and Ohio Railroad Company, specially excepts to the granting of the prayers offered on the part of the plaintiff, because there is no testimony in the cause legally sufficient to sustain the same against the said defendant; and the said exception is made by the said defendant to the first, second, third, fourth, fifth, sixth, and seventh prayers of the plaintiff, severally, and to the granting of each and every one of said prayers.

The Court (GILMOR, J.,) granted all the prayers of the plaintiff. The defendants excepted, and the verdict and judgment being against them, they appealed.

The cause was argued before MILLER, ALVEY, ROBINSON, and IRVING, J.

W. Irvine Cross, Henry E. Wotton, and John K. Cowen, for the appellants.

Wm. A. Hammond, and Charles Marshall for the appellee.

IRVING J., delivered the opinion of the Court.

This is a suit for malicious prosecution, brought by the appellee against the appellants. The declaration charges, 1st. that the defendants "falsely, maliciously, and without probable cause," did cause the plaintiff to be indicted in the Criminal Court of Baltimore City, for obtaining money and valuable securities under false pretences from one James H. Buck.

2nd. That they caused him to be indicted in the same Court for forging a certain railroad ticket from Baltimore to Chicago, by the Baltimore and Ohio Railroad.

3rd. For uttering and publishing as true, a certain falsely made, altered and forged railroad ticket, from Baltimore to Chicago, issued by the Baltimore and Ohio Railroad Company.

4th. For altering a certain railroad ticket from Baltimore to Chicago, and publishing the same as true.

And that having so caused him to be indicted, without reasonable or probable cause, he was duly tried and acquitted; and by means thereof he was greatly injured in his credit and reputation.

A plea of not guilty was interposed by the defendants. Subsequently, by leave of the Court, an additional count was added to the narr., charging substantially, that on or about the 28th of December, 1880, the defendants falsely and maliciously, and without probable cause, did cause a certain search warrent to be issued, to search his office for certain forged, altered, erased and manufactured railroad tickets. To this amended declaration, not guilty was pleaded and issue was joined. Verdict and judgment being in favor of the plaintiff, the defendants appealed.

At the trial, five bills of exception were taken to the Court's rulings, but the view we take of the case will relieve us from considering any of the questions presented by the first four bills of exception. The only question which we have found it necessary to express our opinion about, arises upon the special exception of the defendants to the plaintiff's prayers, on the ground that there was no legally sufficient evidence to warrant the granting of any of his prayers so excepted to; in other words, the appellants contend they had ""abundant probable cause" for their belief in the guilt of the appellee, and for their action in the premises, and that the Court should have so held and refused the instructions asked by the plaintiff for that reason.

The law controlling a case of this kind is so fully and clearly expounded by this Court in Boyd vs. Cross, 35 Md., 197; Cooper vs Utterbach, 37 Md., 318; Stansbury vs. Fogle, 37 Md., 381; Cecil vs. Clarke, et al., 17 Md., 508; and Metcalf vs. The Brooklyn Life Insurance Company, 45 Md., 205; we have only need in this case to re-affirm the principles therein announced. In substance those cases determine, that in order to enable a plaintiff to recover in a suit for malicious prosecution, he will be required, in addition to the fact that he was prosecuted and acquitted, to show that he was prosecuted at the instance of the defendants, "and that such prosecution was both malicious and without probable cause on the part of the defendants." It is also fully settled in those cases, that "the want of probable cause is a mixed question of law and fact." "As to the existence of the facts relied on to constitute the want of probable cause, that is a question for the jury; but what will amount to the want of probable cause in any case, is a question of law for the Court." "If the evidence adduced be legally insufficient to be submitted to the jury, to prove each of the...