Treloar v. Harris

• Decision Date: 04 December 1917
• Docket Number: No. 9315.,9315.
• Citation: 117 N.E. 975,66 Ind.App. 59
• Parties: TRELOAR v. HARRIS.
• Court: Indiana Appellate Court

66 Ind.App. 59

117 N.E. 975

TRELOAR

v.HARRIS.

No. 9315.

Appellate Court of Indiana, Division No. 1.

Dec. 4, 1917.

Appeal from Circuit Court, Clark County; Geo. B. McIntyre, Special Judge.

Action by James Harris against Henry Treloar. Judgment for plaintiff, and defendant appeals. Reversed, and cause remanded, with instructions to grant a new trial.

See, also, 116 N. E. 590.

Edward C. Hughes, of Charlestown, and H. W. Phillips, of Indianapolis, for appellant. Laurent A. Douglass, of Louisville, Ky., and George C. Kopp, of Jeffersonville, for appellee.

HOTTEL, J.

This is an appeal from a judgment for $650 in an action brought by appellee to recover damages alleged to have been sustained by him as a result of an alleged malicious prosecution instituted against him by appellant.

The amended complaint is in one paragraph, and charges, in substance: That on November 28, 1913, the appellant maliciously and without probable cause brought an action against appellee in the court of James S. Keigwin, a justice of the peace in and for Jeffersonville township, Clark county, Ind., upon a false and groundless charge, viz. that appellant charged appellee with being insane, that he observed the first signs of insanity about four years previous to the filing of such proceedings; that said signs consisted of appellee's running as if in fear of some one, irrational talk, and manifestations of violence and anger; that such proceedings were had that upon the trial of said cause on December 1, 1913, a judgment was rendered for the appellee, declaring him to be of sound mind, and said action and suit was thereupon terminated, and appellee was acquitted of said charge; that on the 29th of November, 1913, appellee was taken into custody by an officer, and taken to the county jail, where he was incarcerated and held as a prisoner from said date until December 1, 1913, the date of his trial and acquittal; that during appellee's said absence, and because thereof, his home was wholly destroyed by fire; that such building and the contents thereof were of the value of $500; that he had therein $250 in gold and $150 in paper money; that $30 of the gold and $150 of the paper money were destroyed and totally lost because of said fire; that the destruction of his house and contents as aforesaid and the loss of said money because of said fire was due to the action of appellant in causing him to be placed in jail and taking him away from his home, thereby leaving said home and property unprotected and uncared for; that, if it had not been for the aforesaid conduct and action of appellant, he could have protected his home and saved his money and prevented his property from being burned and destroyed; that because of said malicious action on the part of appellant, without probable cause, appellee has suffered great physical pain and mental anguish and humiliation, and was caused to expend $50 attorney's fees to defend said insanity proceedings, whereby he has been damaged in the sum of $5,000 as aforesaid. A demurrer to this complaint was overruled. A motion for new trial and a motion in arrest of judgment were each overruled. Said several rulings of the trial court are separately assigned as error and relied on for reversal.

[1] The memorandum accompanying said demurrer challenges the sufficiency of the complaint on four grounds, viz.: (1) It fails to show by direct averment the nature of the charge alleged to have been filed by appellant against appellee; (2) the second, third, and fourth grounds, in different language, present substantially the same objection, and are to the following effect, viz. that the proceeding alleged to have been maliciously instituted and prosecuted by appellant against appellee, being a proceeding brought under the statute (sections 3691, 3692, et seq., Burns 1914) to determine whether appellee was a person of unsound mind and entitled to treatment in the insane hospital of this state, is not a civil action, but is a special proceeding, extrajudicial in character, the institution or prosecution of which will not authorize an action for malicious prosecution. The appellant, in support of his contention, cited the following cases: Gooding v. State, 39 Ind. App. 48, 78 N. E. 257;Galbreath v. Black, 89 Ind. 300;Leinss v. Weiss, 33 Ind. App. 347, 71 N. E. 254;Naanes v. State, 143 Ind. 299, 304, 42 N. E. 609;Berry v. Berry, 147 Ind. 179, 46 N. E. 470; 16 Am. & Eng. Enc. Law (2d Ed.) 367.

The first case lends no support to his contention. The second case, supra, holds that a proceeding for the appointment of a guardian under section 2545, R. S. 1881, is ex parte in character, authorized by a special statute, and has few of the qualities or attributes of a civil action. This case, in so far as it holds that such proceeding is ex parte, has been overruled by the later decisions of the Supreme Court. See Martin v. Motsinger, 130 Ind. 555, 30 N. E. 523;Jessup v. Jessup, 7 Ind. App. 573, 34 N. E. 1017;Berry v. Berry, 147 Ind. 176, 46 N. E. 470. The Supreme Court has expressly recognized that an unsuccessful attempt to have one declared of unsound mind under said section 2545, where such proceeding is instituted without probable cause and with malice, furnishes a cause of action for malicious prosecution. Lockenour v. Sides, 57 Ind. 360, 26 Am. Rep. 58. See cases there cited. Leinss v. Weiss, supra, simply holds thai the mere fact that one may have once been admitted to the hospital for the insane is not of itself notice, to those who might deal with him in good faith, that the discharge of such a person as cured is as much notice of the fact that such person is sane as the inquest and admission to such hospital is notice of his insanity.

The case which in our judgment lends most support to appellant's contention is that of Naanes v. State, wherein the court, at page 304 of 143 Ind., page 610 of 42 N. E. speaking of the proceeding provided by section 2843 of R. S. of 1881 (being section 3692, Burns' R. S. 1914), says that:

“It is extrajudicial, and is not intended, as is the judicial proceeding in rem for the appointment of a guardian for the person and property of a lunatic, to fix the status of the person over whom the inquisition is held.”

When we look to the facts of said case in which this language was used and the question there under consideration, we do not think it of controlling influence as affecting the question here under consideration. The defendant in that action, who was being prosecuted for a crime, had interposed a plea of insanity. At the trial, the state was permitted to introduce in evidence the proceedings of an examination by a commission appointed under said section 2843, R. S. 1881, supra, to inquire into the sanity of the defendant, such proceeding and examination having been had a short time before such trial, and the Supreme Court, in support of its holding that the admission of such evidence constituted error, very properly we think, held that such proceedings were for the purpose of determining whether the person alleged to be insane is a proper subject to be admitted as a patient for treatment in the hospital for the insane, and hence that such proceeding was extrajudicial in so far as there might be any implied adjudication fixing the mental status of the person alleged to be insane, for the purpose of any action other than such proceeding, or for any purpose other than the single purpose contemplated by such proceeding. We do not think, however, that the court meant that the proceedings before such examining board and the judgment therein were themselves extrajudicial, or that they were extrajudicial in the sense that they would furnish no ground for complaint or cause of action in favor of the party against whom they were instituted, when they were maliciously begun without probable cause and terminated in a finding and judgment against the prosecutor thereof.

[2] The gist of the action for malicious prosecution is that the “plaintiff has been improperly made the subject of legal process to his damage.” Herbener v. Crossan, 4 Pennewill (Del.) 58, 55 Atl. 223. The essential element for such an action is a malicious prosecution of some legal proceeding, without probable cause, before some judicial officer or tribunal. The scandal or the humiliation, vexation, and expense resulting to the person thus wrongfully prosecuted, furnishes the ground upon which an action for malicious prosecution will lie. Turpin v. Remy, 3 Blackf. 210, 216;Coffey v. Myers, 84 Ind. 107. To the same effect, see the following cases: Lockenour v. Sides, supra; McCardle v. McGinley, 86 Ind. 538, 44 Am. Rep. 343;Pennsylvania Co. v. Weddle, 100 Ind. 138, 143;Stancliff v. Palmeter, 18 Ind. 321, 324, and cases cited. Also, Hillard on Torts (1st Ed.) 270, § 14; Hillard on Torts (3d Ed.) 426, 427, and cases there cited.

[3] A general definition of a “judicial proceeding” is as follows:

“Judicial proceeding means any proceeding for the purpose of obtaining such remedy as the law allows.” State ex rel. v. McCafferty, 25 Okl. 2, 105 Pac. 992, 997, L. R. A. 1915A, 639.

A more specific definition appears in the case of Martin et al. v. Simpkins et al., 20 Colo. 438, 444, 38 Pac. 1092, 1094, and is as follows:

“This much, however, may be safely said (the court had pointed out the difficulty of ascertaining the line between the ministerial and judicial acts): When a regularly constituted court of justice is clothed with authority to hear and determine a question of fact, or a mixed question of law or fact, upon evidence, written or oral, to be produced before such court, and thereupon to render a decision affecting the material rights or interests of one or more persons or bodies corporate, such proceeding by the court must be regarded as judicial, and the decision by the court may properly be denominated a judgment.”

For special cases in which the proceedings were held to be judicial, see Imperial Water, etc., Co. v....