100 Ind. 138 | Ind. | 1885
The questions in this case arise on the ruling denying appellant a new trial. The material facts which the evidence tended to establish are these: The appellee was .arrested upon an affidavit made by James H. Mowatt and was cast into prison where he remained for thirteen days, and was then discharged without a trial. Mowatt had been employed, as is stated in answer to interrogatories propounded by the appellee, “ about the middle of August, 1883, as a detective, for the purpose, in connection with the aid and assistance ■of the proper local police officers, of detecting, and to aid in procuring the punishment of persons not merely supposed by him, or other said officers, to be guilty of crimes against the property of defendant, but his employment and instructions were to investigate fully and fairly all the facts and circumstances, and to make report and only arrest upon the direction of the attorneys or officers of the corporation.” Prior to Mowatt’s appointment, February 6th, 1883, a box of shoes was stolen from appellant’s cars, and the affidavit of Mowatt ■charged the appellee with the larceny and caused his arrest .and imprisonment. The shoes were not stolen by the appel
There are several general propositions which are now well settled, and these propositions we state at the outset without, amplifying them or applying them in detail to the evidence, for it is apparent from their statement that they exert a controlling influence upon the case in judgment:
First. An action for malicious prosecution, or for false imprisonment, may be maintained against a corporation. Evansville, etc., R. R. Co. v. McKee, 99 Ind. 519; American Ex. Co. v. Patterson, 73 Ind. 430; Goodspeed v. East Haddam Bank, 22 Conn. 530; Ricord v. Central Pacific R. R. Co., 15 Nev. 167; Edwards v. Midland R. W. Co., 1 Am. & Eng. R. R. Cases, 571; Iron Mountain Bank v. Mercantile Bank, 4 Mo. Ap. 505; Williams v. Planters’ Ins. Co., 57 Miss. 759; Carter v. Howe Machine Co., 51 Md. 290.
Second. A corporation is responsible for the acts of an agent performed while engaged in the discharge of duties within the general scope of his agency, although the particular act was wilful and was not directly authorized. Evansville, etc., R. R. Co. v. McKee, supra; Louisville, etc., R. R.
Third. A corporation that entrusts a general duty to an agent is responsible to an injured person for damages flowing from the agent’s wrongful act, done in the course of his general authority, although in doing the particular act the agent may have failed in his duty to the principal, and may have disobeyed instructions. Story Agency, section 73; Higgins v. Watervliet, etc., R. R. Co., 46 N. Y. 23; S. C., 7 Am. R. 293; Evansville, etc., R. R. Co. v. McKee, supra; Pierce R. R. 277; 2 Rorer R. R. 821.
Fourth. A principal who selects an agent to detect and arrest offenders is responsible for the acts of the agent committed within the general scope of his employment, although the agent may have done an unlawful act and have arrested an innocent man. Evansville, etc., R. R. Co. v. McKee, supra, and authorities cited.
It was proper to permit the appellee to give in evidence the declarations of Mowatt made at the time he arrested the appellee. Two valid reasons support this conclusion: 1st. "Where an act is competent, so, also, are the declarations of the persons engaged in its performance and constituting a part of the thing done. Creighton v. Hoppis, 99 Ind. 369; Baker v. Gausin, 76 Ind. 317. 2d. The declarations of an agent, made at the time he is actually engaged in the performance of an act within the line of his duty, are admissible against the principal. Trustees, etc., v. Bledsoe, 5 Ind. 133; Hudspeth v. Allen, 26 Ind. 165; Toledo, etc., R. W. Co. v. Goddard, 25 Ind. 185; Hynds v. Hays, 25 Ind. 31; Hunter v. Leavitt, 36 Ind. 141; Heller v. Crawford, 37 Ind. 279; 1 Greenl. Ev., sections 113, 114.
Evidence of the good character of the plaintiff, in actions for malicious prosecution; is competent. American Ex. Co. v. Patterson, 73 Ind. 430, vide p. 438; Blizzard v. Hays, 46 Ind. 166; Shannon v. Spencer, 1 Blackf. 526; Israel v. Brooks, 23 Ill. 526.
The case of Turpin v. Remy, 3 Blackf. 210, does not decide that it is essential to the maintenance of an action for a malicious prosecution to show that there was an arrest, but does decide that the action can only be maintained for the malicious prosecution of the plaintiff before some judicial officer or tribunal. This court has adopted the doctrine of Blackstone, Hilliard, and other text-writers, that it is not essential that an arrest should be made in order to create a cause of' action, and in this it is well sustained by- the adjudged cases. Coffey v. Myers, supra, and authorities cited; Stancliff v. Palmeter, 18 Ind. 321; Collins v. Love, 7 Blackf. 416; Stapp v. Partlow, Dudley (Ga.) 176; Closson v. Staples, 42 Vt. 209; S. C., 1 Am. R. 316.
In the well considered case of Elsee v. Smith, 2 Chitty R. 304, Bayley, J., said, in speaking of a party who prefers a. criminal charge: “but if he falsely and maliciously, and without any probable cause, puts the law in motion, that is-properly the subject of an action on the case.” Our cases have, indeed, gone so far as to hold that an action for malicious prosecution will lie although no arrest could have been made. Lockenour v. Sides, 57 Ind. 360; S. C., 26 Am. R. 58; McCardle v. McGinley, 86 Ind. 538. This doctrine is well sustained by authority. Pedro v. Barrett, 1 Ld. Raymond, 81; Norris v. Palmer, 2 Modern, 51; Closson v. Staples, supra; Marbourg v. Smith, 11 Kan. 554; Burnap v. Albert, Taney C. C. Dec. 244; Whipple v. Fuller, 11 Conn. 582; Cox v. Taylor, 10 B. Mon. 17; Easton v. Bank, etc., 31 Albany L. J. 63.
The appellant asked several instructions upon the subject.
The instructions given by the court upon the subject of probable cause left to the jury the question of whether the facts constituted probable cause. This was error. It was for the jury to find the facts, and for the court to decide whether or not the facts constituted probable cause for the prosecution. The authorities are well agreed that whether the facts proved or assumed do or do not constitute probable cause, is a question of law to be decided by the court,- and not by the jury. In Brown v. Connelly, 5 Blackf. 390, it was said: “ Whether any given facts amount to a probable cause for the prosecution, is a question of law. Johnstone v. Button, 1 T. R. 545 Blachford v. Dod, 2 B. & A. 179.” The court, in Panton v. Williams, 2 G. & D. 504, said: “It is the duty of the judge to inform the jury, if they find the facts to be proved, and the inferences to be warranted by such facts, the same do or do not amount to reasonable or probable cause, so as thereby to leave the question of fact to the jury, and the abstract question of law to the judge.” The same doctrine is thus expressed by another court: “ Whether the circumstances alleged to show it probable are true and existed, is a matter pf fact for the jury. But whether, supposing them true, they amount to probable cause, is a question of law for the court.” By the same court it was said: “ Either party, upon request, would have been entitled to a
In a limited sense, the question of whether there is or is not probable cause is one of mixed law and fact, but it is not so in such a sense as to permit the court to surrender its function of deciding questions of law, nor to usurp that of the jury to decide questions of fact. The question is one of mixed law and fact thus far, and no farther, namely: When the facts
It is clear from the authorities, that where the facts are not disputed the court must decide, as matter of law, whether they do or do not constitute probable cause ; but where they are disputed, then the court must hypothetically state the material facts which there is evidence fairly tending to prove, and positively direct as to the law upon the assumed state of facts. Where the evidence is conflicting, the court must charge the law upon the conflicting theories, and in no event leave the question of law to be decided by the jury, since that, would be a surrender of the functions of the judge, which the law will not allow him to make. A judge can neither evade nor escape the duty of declaring the law to the jury. The two provinces of court and jury are essentially distinct, and the court, while not allowed to decide questions of fact, can not abdicate its own functions by leaving to the jury the decision of questions of law. The confusion into which a few of the
In the case at bar, the theory of the trial court was radically wrong. The facts hypothetically assumed in the instructions were not only such as tended to establish probable cause, but were, if true, such as in law did constitute probable cause. It was, therefore, the duty of the court to instruct the jury, not that the facts assumed might be considered as tending to establish probable cause, but that they did in law constitute probable cause. Instead of leaving the question to the jury, as to whether the facts did or did not constitute probable cause, the court should have pronounced the law upon the facts, leaving to the jury only the settlement of the dispute as to the existence or non-existence of the facts.
Judgment reversed.