Viner v. Friedman.
| Decision Date | 03 August 1943 |
| Docket Number | Nos. 90, 91.,s. 90, 91. |
| Citation | 33 A.2d 631 |
| Parties | VINER et al. v. FRIEDMAN. |
| Court | D.C. Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from the Municipal Court for the District of Columbia, Civil Division.
Malicious prosecution actions by Richard Louis Viner by his next friend Charles Louis Viner and by Edward Francis Thompson, minor, by his next friend, Edwin Clarence Thompson against Isaac Friedman. From judgments upon directed verdict for defendant, plaintiffs appeal.
Reversed and remanded with instructions to award a new trial. identified the boys as having actually stolen the tomatoes, though at one time he expressed some doubt about the identity of one of them; that one of the boys saw Sanford along his route in or near an automobile and, thinking him to be a tire thief, watched him for awhile but did nothing further about it; that the plaintiff Thompson saw the plaintiff Viner at the route station as they were starting out but did not see him again that morning; that Sanford complained of the alleged theft to the police; that in the afternoon of that day a police-officer called at the Viner home and accused Viner and Thompson of the theft; that the Viner boy promptly repudiated the charge, immediately went to the Thoompson home and returned with the Thompson boy who likewise denied all connection with the theft; that at the officer's behest they appeared the following morning at the police precinct and confronted Sanford; that Sanford identified both boys and upon that identification they were booked on a charge of petty larceny; that on the following afternoon Sanford called at the Viner home and stated to Mrs. Viner that he personally would like to see the matter adjusted but that Mrs. Friedman would not permit an adjustment but was insisting upon prosecution; that the information under which the boys were charged was signed by Sanford; that the officer acted entirely on what Sanford had told him; that Sanford went to the Juvenile Court on three different occasions; that on all those occasions defendant Friedman went with him; that both Sanford and Friedman testified at the trial in the Juvenile Court; that Friedman had never sought to have the charges in Juvenile Court dropped; that by appearing in court and testifying and keeping the prosecution alive Friedman had ratified the actions of his employee Sanford.
Some parts of this evidence were corroborated or actually adduced by the defense; other parts the defense explained and still others it directly contradicted.
The motion for an instructed verdict was made upon the conclusion of all the evidence and was on the grounds that probable cause had been shown; that there was no proof of malice; that there was no evidence that defendant was connected with the arrest or prosecution; that defendant's employee Sanford did not instigate or order, and was not in any way responsible for, the arrest; and that there was no evidence that Sanford had authority to prosecute the plaintiffs or to order their prosecution. The trial judge granted the motion and took the case from the jury.
The propriety of that ruling is before us for review. Express malice is not claimed and it is conceded that malice in law can only be inferred if want of probable cause be first established. Our decision therefore will determine whether...
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...is, of course, "axiomatic that malice may be presumed from the lack of probable cause." Amobi, 755 F.3d at 993, citing Viner v. Friedman, 33 A.2d 631, 632 (D.C. 1943). "The issue in a malicious prosecution case is not whether there was probable cause for the initial arrest, but whether ther......
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...a genuine issue of fact as to whether a defendant continued a malicious prosecution." Amobi , 755 F.3d at 992 (quoting Viner v. Friedman, 33 A.2d 631, 632 (D.C.1943) ); see also Cousins v. Hathaway , 2014 WL 4050170, at *11 (D.D.C. Aug. 15, 2014). Moreover, the District may be held vicariou......
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