Walker v. Pittman

• Decision Date: 23 November 1886
• Parties: Walker and others v. Pittman.
• Court: Indiana Supreme Court

108 Ind. 341

9 N.E. 175

Walker and others

v.Pittman.

Supreme Court of Indiana.

November 23, 1886.

Appeal from circuit court, Clinton county.

Action for malicious prosecution.

Kane & Davis, Harrison, Miller & Elam, and J. C. Suit, for appellant. Moss & Stephenson, for appellee.

Niblack, J.

This was an action by Oliver Pittman against Emmett E. Walker, Eliza J. Walker, and Richard H. Walker, for an alleged malicious prosecution. It was commenced in the Hamilton circuit court, and afterwards taken to the Clinton circuit court for trial. The plaintiff obtained a verdict for $700 against Emmett E. Walker and Eliza J. Walker, and, over a motion for a new trial and exceptions reserved, had judgment on the verdict.

The complaint charged that the defendants in July, 1884, maliciously, and without probable cause, caused the plaintiff to be arrested and taken before a justice of the peace of Hamilton county, upon a charge of an assault and battery upon the said Emmett E. Walker with intent to murder him, the said Emmett E. Walker, and had him, the plaintiff, recognized to appear in the circuit court of that county to answer such charge; also that the defendants maliciously, and without probable cause, procured the plaintiff to be tried in the circuit court upon such charge or affidavit and information, where he was acquitted, after having incurred great expense in his defense, and a temporary imprisonment in the county jail, and other injuries.

It came out at the trial, as a part of the evidence in chief, introduced by the plaintiff, that, previous to his arrest in July, 1884, there had been a personal collision between the plaintiff and his father on the one side, and the said Emmett E. Walker on the other, in which pistol shots were fired, and, by reason of which, the latter was injured, and that it was on account of that personal collision that the plaintiff was arrested and tried as above charged. To sustain the issues on his part, and to support the allegations of his complaint, and as original evidence in chief, the plaintiff was, over objection, further permitted to prove by two witnesses that, at the time of the personal collision in question, the defendant Emmett E. Walker was a man of bad reputation for peace and quietude in the neighborhood in which he lived, and the omission of that proof has been made a question upon this appeal.

It is quite impracticable to formulate any general rule as to the kind of evidence which must be introduced, or as to the facts which must be proven, to maintain an action of this kind in all cases, since, in the nature of things, each case of the kind must, to a great extent, rest upon the peculiar circumstances attending it. But there are certain general rules for the admission of evidence which apply as well to actions for malicious prosecution as to other causes, and one of these is that only such evidence is admissible as tends to support the issue, or some one of the issues, joined between the parties. In applying this last-named rule to a case like this, it must be kept in view that probable cause does not depend, in point of fact, upon the actual state of the case, but upon the honest and reasonable belief of the party charged with maliciously prosecuting the action complained of. The want of probable cause is a material averment, and, though negative in its form and character, it must be affirmatively proven by facts and circumstances which were within the...