55 A. 532 | Md. | 1903
This appeal grows out of a suit for malicious prosecution. It appears from the evidence that Henry Campbell, a boy about seventeen years old, was arrested on a warrant sworn out by Daniel Scully, a special officer of the Baltimore Ohio Railroad Company, charging him with being unlawfully on the cars of that company in violation of the Act of 1892, chap. 397. He was committed to jail in default of bail, was subsequently released on bail, tried in the Criminal Court of Baltimore City before a jury and acquitted; whereupon this suit was brought against the Railroad Company in the Court of Common Pleas to recover damages for malicious prosecution and false arrest.
At the instance of the defendant the learned Judge below took the case from the jury and instructed them that no legally sufficient evidence of want of probable cause had been offered by the plaintiff. This instruction, of course, resulted in a verdict and judgment in favor of the defendant and the plaintiff has appealed.
During the trial four exceptions were taken by the plaintiff, two of them relating to the rulings of the Court upon the admissibility of testimony, one to the granting of the defendant's prayer, and the remaining one to the overruling of his special exception to that prayer. This exception is based upon the objection that the prayer submits questions of law to the jury as to what is probable cause, what is malicious prosecution and what is false arrest. We will briefly consider these exceptions in the order named.
1. During the cross-examination of the witness Scully, who caused the arrest of the plaintiff and who it is conceded for the purpose of this case was acting on behalf of the defendant, was asked whether he had any malice or reason of that kind for arresting the plaintiff. The objection of the plaintiff to the asking of this question was overruled by the Court. The propriety of this ruling constitutes the first exception.
It is apparent from the connection in which this question was asked as well as from the answer of the witness that the *343
word "malice" was here used in its ordinary and colloquial meaning and not in its legal sense as defined by the law relating to actions for malicious prosecutions and false arrest. In the former sense it is called malice in fact or express malice and its existence may be established by proof of actual bad feeling, personal hatred or ill will on the part of the defendant towards the plaintiff. But malice in its legal sense, as used in actions like this, "is not to be considered in the sense of spite or hatred against an individual, but of malus animus, and as denoting that the party is actuated by improper and indirect motives." Johns v. Marsh,
2. After the witness had answered the question just referred to, he was asked, in continuing the cross-examination, when he swore out the warrant, and what were the facts which led him to do it? The plaintiff's objection to this question was also overruled.
We think there can be no doubt the question was proper. It will be remembered that the witness under cross-examination had been called by the plaintiff to prove that he, at the instance of the defendant, and as its agent and officer, had made the arrest in accordance with certain printed general instructions. *344 He was not asked, however, nor did he state on his examination in chief the facts which induced him to make the arrest. These facts undoubtedly form a part and a most important part of the transaction which was being inquired into and had a direct relation to one of the issues at least, namely, whether under all the circumstances the arrest was justifiable, in other words whether the defendant or its officer had probable cause for making the arrest. It would have been most unfair to allow the plaintiff's witness to testify to the jury that the arrest was made, and prevent him from giving in evidence most important and necessary facts to show that so far from being illegal, the conduct of the officer was entirely justifiable. If the cross-examination of a witness could be limited and confined as here proposed by the plaintiff, this important right would cease and very properly so, to be regarded as one of the principal, and most efficacious tests which the law has devised for the discovery of truth. 1 Greenleaf on Ev., sec. 446.
3. The third exception relates to the granting of the defendant's prayer taking the case from the jury on the ground that there was no legally sufficient evidence of want of probable cause. In the first place what is the well settled law in regard to this question? The want of probable cause, it has often been said by this and many other Courts is a mixed question of law and fact. As to the existence of the facts relied on to constitute the want of probable cause, that is a question for the jury; but what will amount to the want of probable cause in any case, is a question of law for the Court. Boyd v. Cross,
4. But, finally it was contended that the granted prayer is bad in form because it submits questions of law to the jury. It does not, however, submit anything to the jury — either questions of law or of fact. They were told that the evidence offered by the plaintiff to prove an essential part of his case was not legally sufficient for that purpose and that, therefore, their verdict must be for the defendant. This we have already said, was, under the facts of this case, a proper instruction.
Judgment affirmed with costs.
(Decided June 29th, 1903.) *347