Zablonsky v. Perkins, 127

• Decision Date: 15 January 1963
• Docket Number: No. 127,127
• Parties: Ben ZABLONSKY v. Richard E. PERKINS.
• Court: Maryland Court of Appeals

Page 365

230 Md. 365

187 A.2d 314

Ben ZABLONSKY v. Richard E. PERKINS.

No. 127.

Court of Appeals of Maryland.

Jan. 15, 1963.

Marvin I. Singer, Baltimore (Henry Miller, Baltimore, on the brief), for appellant.

William F. Mosner, Towson (Power & Mosner, Towson, on the brief), for appellee.

Before HENDERSON, HAMMOND, PRESCOTT, HORNEY, and MARBURY, JJ.

HENDERSON, Judge.

In an action for malicious prosecution the court, without a jury, found for the plaintiff and assessed the damages at $1,000, and this appeal is from a judgment entered in that amount. The appellant contends that the appellee failed to establish two of the essential elements of the tort, that the criminal action in a magistrate's court was instituted by the appellant without probable cause, and with malice. The amount of the verdict is not challenged, nor the evidence of damages to support it.

The facts are virtually undisputed. The appellant is the owner of a hall where he operates a night club. The appellee, the president of a business and social organization, leased the hall for a New Year's dance on December 31, 1961, and hired a seven piece band for the occasion. On the following day the appellant informed the appellee by telephone that a microphone and boom, part of the loud-speaking equipment in the hall, was missing. On the theory that it might have been taken by a member of the band, Perkins agreed to get in touch with the band, but apparently was unable to do so. The hall owner then went to the magistrate's court and obtained a show cause order. The appellee appeared and gave the names of some of the band members, who were summoned but disclaimed any knowledge of the missing equipment. There the matter rested until February 21, 1961, when, as appears from an exhibit put in evidence by the plaintiff, Zablonsky swore out a warrant charging Perkins with larceny after trust. Perkins was arrested on this warrant, lodged in jail, but subsequently released on his own recognizance upon his promise to make further efforts to obtain the return of the equipment. On April 28, 1961, the magistrate found him guilty, imposed a fine of $50.00 and costs, suspended it, and put him on probation for three months to make restitution. An appeal was entered on May 2, 1961, to the Criminal Court of Baltimore, where the conviction was reversed. The Assistant State's Attorney told the court: 'I don't understand why he was convicted.' The case at bar was filed on June 30, 1961.

What must be shown in order to establish the fact of malicious prosecution is well settled and the rule was clearly stated in the recent case of Banks v. Montgomery Ward & Co., 212 Md. 31, 38, 128 A.2d 600. Cf. Norvell v. Safeway Stores, Inc., 212 Md. 14, 20, 128 A.2d 591, 59 A.L.R.2d 1407. See also Restatement, Torts, sec. 659. It is conceded that the criminal proceeding terminated in the appellee's favor. But the appellant contends that the original conviction conclusively establishes that the prosecuting witness had sufficient reason to lay the complaint, regardless of the subsequent reversal.

There appears to be no Maryland decision directly in point, although there is a dictum in Owens v. Graetzel, 149 Md. 689, 696, 132 A. 265, 267, that '[a]s in as action of malicious prosecution for a criminal offense, the conviction of the traverser is commonly conclusive proof of probable cause, so, where the suit is based upon a civil proceeding, a judgment or decree by a court of competent jurisdiction adverse to the defendant in the proceeding is, in general, conclusive proof of probable cause, although the judgment in either class of actions was reversed in an appellate court.' Among the cases cited for this proposition was Crescent City Live Stock Co. v. Butchers' Union, 120 U.S. 141, 149, 7 S.Ct. 472, 30 L.Ed. 614. It was pointed out in that case that there is a split of authority as to whether the original conviction or judgment is conclusive proof of probable cause, or only prima facie proof, but in either view there is an exception where it can be shown that the conviction or judgment was obtained by fraud. For collections of cases dealing with the two classes of action, see 58 A.L.R.2d 1424 and 59 A.L.R.2d 1413. The only Maryland cases cited in the Owens case were Rieger & Co. v. Knight, 128 Md. 189, 199, 97 A. 358, L.R.A.1916E, 1277, where it was held that a preliminary injunction, granted ex parte, was not conclusive, and Clements v. Odorless Excavating Apparatus Co., 67 Md. 461, 464, 10 A. 442, 13 A. 632. See also the dissenting opinion p. 605, 13 A. 632. The Court there held that an action for the malicious prosecution of a civil suit would lie, and that the judgment would be considered conclusive on the question of probable cause, even though reversed on appeal. It was also held that the record of a suit for infringement of a patent, brought by the appellee against a third person, was not admissible to show fraud in the case at bar. We do not read the opinion as holding, as the dissenting opinion suggests, that fraud would not destroy the conclusive effect of the judgment, but only that there was no proper showing of fraud in the proffer, as against the appellee in that case.

In any event, we think the exception is too well settled to admit of doubt. See 1 Harper & James, Law of Torts, § 4.5; 34 Am.Jur., Malicious Prosecution, § 55; 54 C.J.S. Malicious Prosecution § 37. The Restatement, Torts, § 667, states the rule to be: 'The conviction of the accused by a magistrate or trial court although reversed by an appellate tribunal, conclusively establishes the existence of probable cause, unless the conviction was obtained by fraud, perjury or other corrupt means.' Prosser on Torts, p. 657, states: 'A conviction after trial, even though it is subsequently reversed, obviously presents strong evidence that...