194 Ind. 670 | Ind. | 1924
Appellee sued appellant and two others for damages for alleged malicious prosecution, and recovered a verdict and judgment for $10,000 against appellant alone. Overruling the motion for a new trial is the only error assigned. The complaint alleged that the defendant Zenite Metal Company was
There was no evidence that appellant appeared in person before the grand jury that returned the indictments against plaintiff (appellee), but the undisputed evidence of witnesses called by both sides was that except for some papers brought to the grand jury by an attorney who had visited plaintiff in New York in the interest of the Zenite Metal Company, and who was shown to have received fees from it for that and other special employments by the company as its attorney, and who testified that when he went to see plaintiff in New York he went “for Mr. Duckwall” (appellant), the testimony of said attorney was the only evidence heard by the grand jury. It also appeared without dispute that this attorney was the deputy prosecuting attorney in charge of the grand jury at the time the indictments were returned, and that the papers referred to were from the files of the Zenite Metal Company, some of them being letters and telegrams by plaintiff addressed to said company, some to plaintiff on behalf of that company, written by its secretary, others on its behalf written by appellant, as its president, and one that purported to be from appellant, individually. To
The facts which must be established in order for plaintiff to be entitled to recover were: (1) that appellant instituted the prosecution or caused it to be instituted; (2) that he acted maliciously in so doing; (3) that there was no probable cause
“The fact that an indictment was returned by the grand jury was in itself presumptive evidence of probable cause, though subject to be rebutted by proof that it was induced by false testimony or other improper means. Terre Haute, etc., R. Co. v. Mason, supra; Scotten v. Longfellow (1872), 40 Ind. 23, 27; 19 Am. & Eng. Ency. of Law (2d ed.) 663.” Miller v. Willis (1920), 189 Ind. 664, 670.
Assuming, without deciding, that there may have been evidence fairly tending to prove each material element of plaintiff’s case, as well as evidence to the contrary, we proceed to the examination of the reasons assigned for asking a new trial.
' The giving of each of certain instructions and the refusal to give each of certain others were specified as reasons for a new trial. Appellee insists that no question is presented by these specifications because the instructions were not incorporated in a bill of exceptions, and the attorneys and judge did not indorse thereon statements indicating which were given and which refused, and what exceptions were taken, in compliance with the statutes (§§560, 561 Burns' 1914, §535 R. S. 1881, Acts 1907 p. 652) which authorize exceptions to be noted by making such memoranda. But the act of 1907 also provides that — “All instructions requested, whether given or refused, and all instructions given by the court of its own motion, shall be filed with the clerk of the court at the close of the instruction of the jury. Exceptions to the giving or refusing of instructions may be taken * * * and (Our italics) the same may be taken orally and entered upon the record or minutes of the court, * * *.
Exceptions to the giving of the instructions complained of seem to have been taken in the case at bar in strict compliance with the provisions of the statute above quoted. The record recites that plaintiff tendered instructions numbered 1 to 8, inclusive, that the court gave of said tendered instructions Nos. 1, 2, 3, 4, 5, and 6, and refused to give the others, and that to the giving of each of those so given each one of the defendants at the time excepted; that the defendants tendered instructions numbered 1 to 17, inclusive, of which the court gave Nos. 6, 8, 9, 14, 15 and 17, and refused to give each of the others; and that the court gave- of its own motion instructions numbered from 1 to 13, inclusive, to the giving of each of which severally the defendants severally excepted at the time; that all the instructions so requested by plaintiff and defendants, respectively, were signed by the court and ordered filed and were filed, and were as follows (setting them out) ; and that all those given by the court of its own motion were signed by the court in open court, and were “ordered filed, which is now done, and are as follows” (setting them out). Under the statutory provision that exceptions to the giving or refusal of instructions “may be taken orally and entered upon the record,” that “all entries upon the minutes or records of the court in respect to such instructions and exceptions shall be a part of the record” on appeal, and that
The authorities holding that certain acts are necessary in order to reserve exceptions by indorsements on the margin or at the close of the instructions are not controlling in this case, where the exceptions were taken orally at the time the instructions were given, and were noted on the record in the order book.
Appellant’s exceptions to the refusal of certain instructions asked by him and his codefendants below are not available, although the record recites that ex-ceptions were taken at the time, because it appears from the record that these instructions were not tendered to the court, with a request that they be given until after the argument was concluded. §§558, cl. 4, 559 Burns 1914, §§533, 534 R. S. 1881; Ransbottom v. State (1896), 144 Ind. 250, 255, 43 N. E. 218; Stamets v. Mitchenor (1905), 165 Ind. 672, 676, 75 N. E. 579. But counsel for appellee are mistaken in stating that the requested instructions were not sufficiently signed by counsel.' Signing a request that they be given which was attached to and fully identified them was a sufficient signing of the instructions. Indiana, etc., T. Co. v. Sullivan (1913), 53 Ind. App. 239, 244, 101 N. E. 401.
By instruction No. 2, given at the request of the plaintiff, the jury were told that certain enumerated facts “would not constitute probable cause for instituting a criminal prosecution against the plaintiff.” But the instruction did not mention
It is further objected that this instruction opened with the statement (Our italics) that: “One of the questions submitted for your consideration is the question as to whether or not the defendants or •either of them had probable cause to believe the plaintiff guilty of a criminal offense when they caused the prosecution to be begun.” The defendants having introduced evidence that none of them had anything to do with causing the prosecution to be commenced, and appellant having specifically denied, under oath, that he was a party to causing it, the court erred in thus assuming as a fact that “they caused the prosecution to be begun,” and discussing the conditions under which they did so.
Appellant challenges certain instructions which erroneously submitted to the jury the general question whether or not there was probable cause for the alleged prosecution, while appellee insists that the error was waived by asking and procuring
Evidence was admitted to the effect that a jail in Indiana in which plaintiff was confined after his arrest was in a filthy and unlawful condition, and that he was denied food fit to eat or the use of a bed, and that he was put into a cell that was filthy and full of vermin which got on his person and into his clothes, and that he was treated in a rough and brutal manner by his jailers and was otherwise unlawfully mistreated. But there was no evidence that the defendants knew or had reason to believe that any such things would be done. No exceptions were reserved to the introduction of this evidence. But the court gave an instruction at the request of plaintiff (No. 5) to which an exception was reserved, by which, it told the jury that in addition to other matters to be considered by them in fixing the amount of damages to be awarded (Our italics) they “would have the right to consider the discomfort inflicted on his person as a result thereof and the humiliation endured by him while under arrest and as a result thereof;” and that if they found the defendants liable to exemplary damages “in determining such
The authorities are in conflict on the question whether or not the bad condition of the jail and personal affronts to the prisoner by the public officers to whose custody he was committed may be considered as an element of compensatory damages or for the purpose of enhancing the exemplary damages in an action for malicious prosecution. But in the absence of any showing that the defendant procured or induced the officers to be guilty of such mistreatment, or knew or had reason to anticipate that plaintiff would suffer from violations of the law on the part of officers of this state while in their custody, we do not think acts done by them in violation of law were a proper element of compensatory damages; and without such a showing it clearly could not be the basis for an award of exemplary or punitive damages. Zebley v. Storey (1888), 117 Pa. 478, 12 Atl. 569; Baer v. Chambers (1912), 67 Wash. 357, 121 Pac. 843, Ann. Cas. 1913D 559; Seidler v. Burns (1911), 84 Conn. 111, 79 Atl. 53, 33 L. R. A.(N. S.) 291; Laing v. Mitten (1904), 185 Mass. 233, 70 N. E. 128; Flam v. Lee (1902), 116 Iowa 289, 90 N. W. 70, 93 Am. St. 242; Redman v. Hudson (1916), 124 Ark. 26, 186 S. W. 312; Vansickel v. Brown (1878), 68 Mo. 627; Garvey v. Wayson (1874), 42 Md. 178.
It is a criminal offense for the keeper of a jail or other lawful place of confinement to suffer it to become foul or unclean. §2412 Burns 1914, Acts 1905 p. 584, §506. It is made the official duty of the sheriff having
Since the case must be tried again we do not think it .advisable to express an opinion concerning the sufficiency of the evidence, nor whether the damages were excessive.
The other rulings alleged to have been erroneous, so far as they are presented for review are of such a character that they probably will not be repeated when the case is again tried.
The judgment is reversed, with directions to sustain the motion for a new trial.
Myers, J., concurs on ground that plaintiff’s requested instruction No. 5 was erroneous.