Vinal v. Core

• Citation: 18 W.Va. 1
• Parties: VINAL v. CORE AND COMPTON.
• Decision Date: 14 May 1881
• Court: Supreme Court of West Virginia

18 W.Va. 1

VINAL v. CORE AND COMPTON.

Supreme Court of West Virginia.

May 14, 1881

Absent, JOHNSON, JUDGE.

1. In an action for malicious prosecution against two defendants jointly, the cause of action arose in Ritchie county, West Virginia. One of the defendants resided in that county; and the other defendant resided in the State of Michigan, and had not any estate or debts due him in Wood county, West Virginia. The circuit court of Wood county has, nevertheless jurisdiction of the action, if the defendants were found in that county and served with process in it; and a plea in abatement setting up in a proper manner these facts was properly held bad on demurrer.

2. When the declaration alleges the discharge of the plaintiff by the examining justice the following facts must be proved in such a case to justify a verdict against both of the defendants jointly: First, That the prosecution alleged in the declaration had been set on foot and conducted to its termination in the final discharge of the plaintiff by the justice; Second, That it was instigated and procured by the co-operation of the defendants; Third, That it was without probable cause; Fourth, That it was malicious.

3. By the first of these requirements is meant that the plaintiff must have been arrested under a process not absolutely void and by its being ended is meant, not that the plaintiff had been so discharged, as that no subsequent prosecution for the same alleged crime could ever be instituted, but only that this particular prosecution was ended, when this was the allegation in the declaration.

4. By the second of these requirements is meant, not that the defendants jointly applied to the justice to issue the warrant against the plaintiff, but that they consulted and advised together, and both participated in the prosecution which was carried on under their countenance and approval.

5. By the third of these requirements, probable cause, is meant, a state of facts actually existing known to the prosecutor personally or by information derived from others, which would justify the prosecution, that is, which in the judgment of the court would lead a reasonable man of ordinary caution acting conscientiously upon these facts, to believe the party guilty.

6. By the last requisite, malice, is meant, not what this word imports, when used in common conversation, nor yet its classical meaning, but its legal and technical meaning, that is, some motive other than a desire to secure the punishment of a person believed by the prosecutor to be guilty of the crime charged, such as malignity, or a desire to get possession by such means of the goods alleged to be stolen, when the charge is larceny, or any other sinister or improper motive.

7. Whether malice exists or not is a pure question of fact for the jury, and should not be passed upon by the court, except to define to the jury clearly what is meant by malice. Whether particular facts admitted, undisputed or assumed, do or do not constitute malice, or are such, that malice may be inferred from, is a mere question of fact for the jury. The court can draw no inference from any state of facts, that malice does or does not exist.

8. On the other hand probable cause is a mixed question of law and fact. What are the existing facts, on which probable cause or its absence is based, is a question of fact to be decided by the jury. But the facts being admitted undisputed or assumed, whether they constitute probable cause or not, or whether from them the existence or absence of probable cause is to be inferred, is a pure question of law for the decision of the court and not for the jury.

9. Upon a supposed or assumed state of facts, no matter however complicated, if there be testimony tending to prove such facts, and they are pertinent to the question, the court is bound at the instance of the parties to instruct the jury, whether such supposed or assumed state of facts does or does not amount to probable cause.

10. An inference of fact may be drawn by the jury from a want of probable cause, that malice exists, but such inference cannot be drawn by the court, and is not a necessary inference in every case, and may be rebutted.

11. Want of probable cause cannot be inferred from the most express proof of malice.

12. There must always be proof of a want of probable cause to sustain the plaintiff's action; and in addition thereto he must satisfy the jury, that there is malice, though they may if they think proper, infer this malice in a particular cause from the proof of want of probable cause; but malice and want of probable cause must both concur to entitle the plaintiff to recover.

13. Though the facts, on which are based the existence or non-existence of probable cause, are those known to the defendant, when the prosecution was begun by him, yet he may be presumed by the jury to know all the existing facts, and the burden is on him to satisfy the jury, that any particular fact proven to be then existing was unknown to him.

14. The opinions, beliefs and motives of the defendant form no part of the basis of probable cause, and are not to be considered in determining, whether probable cause exists or not.

15. The burden of proving the want of probable cause is in the first place on the plaintiff, but it being a negative proposition and sometimes for that reason difficult to prove, in such case but little is required to prove it.

16. The discharge by a justice of the plaintiff, who has been arrested and brought before him for examination, or the refusal of the grand jury to indict him, is prima facie evidence of a want of probable cause, but it is liable to be rebutted by proof.

17. In an action for a malicious prosecution for a crime alleged to have been committed by the plaintiff the measure of damages is such an amount, as the jury may find will compensate the plaintiff for the actual outlay and expenses about his defence in the prosecution against him, and for his loss of time, and for the injury to his feelings, person and character by his detention in custody and prosecution; and the jury may also, if they find said prosecution to have been commenced or pursued for private ends or with reckless disregard of the rights of the plaintiff, give such punitive damages as they may think proper, for such conduct on the part of the defendants.

18. In an action for malicious prosecution against two jointly they are both responsible to the full extent of the damages, which the plaintiff is entitled to recover against either, though one may have been actuated by malignity and the other by no malice except such as was inferrible from his uniting with his co-defendant in doing a wrongful act.

19. The plaintiff's general bad character may be proven in such an action in mitigation of damages; and it also enters as a fact or circumstance to be considered in determining, whether there was or was not probable cause.

20. If the plaintiff, though there was no probable cause for charging him with larceny, was nevertheless guilty of a gross fraud in appropriating the property of another to his own use, which property was in his custody, but to which he neither had a just claim nor believed he had a claim, such fraud should be considered as mitigating the damages, to which he may be entitled in an action for maliciously prosecuting him for stealing such property, and would render it improper for the jury in such a case to award him punitive damages.

21. The advice of counsel to the defendant to institute the criminal proceedings ought not to be taken into consideration in determining, whether probable cause existed or not. It should however be considered by the jury in determining the question of fact, whether the defendant was or was not actuated by malice, and it is entitled to more or less weight, or to no weight at all according to all the circumstances attending it, all of which should be considered by the jury. The circumstances referred to are such as these: Whether the advice of counsel was sought bona fide or was sought only as a mode of protecting the defendants in a contemplated wrong; --whether it was followed in good faith or not; --whether it was really believed to be good counsel by the defendant; --whether the attorney giving the advice was an attorney of character and standing or otherwise; --whether he was or was not candid and disinterested in the opinion of the defendant in giving the advice; --whether all the facts and circumstances as known to the defendant were frankly communicated to the attorney, or a portion of them suppressed or misstated; --whether the defendant had or had not made a careful investigation of the facts before consulting counsel. Under some circumstances this advice of counsel ought to be entitled to great weight with the jury as tending to show that the defendant was not actuated by legal malice; under other circumstances it would be entitled to very little or no weight, or might even tend to show, that the defendant was actuated by malice. The jury alone should determine the character and effect of such advice.

22. A new trial in cases of this character ought not to be granted especially by the Appellate Court, because the damages awarded are excessive, unless they are so enormous as to furnish evidence of prejudice, partiality, passion or corruption on the part of the jury.

23. In such cases and in all cases, where the proper amount of damages can not be fixed by the court by the application of settled rules of law to evidence, but where it necessarily depends in a great degree on the discretion of the jury, if the damages assessed are so enormous as to justify the court in setting aside the verdict and awarding a new trial, this should be done, and the court ought not...