96 Vt. 291 | Vt. | 1923
The plaintiff has recovered judgment against both defendants on the verdict of a jury in an action for malicious prosecution. The ease is here for review on the defendants ’ exceptions to the overruling of a motion for a directed verdict, and on certain exceptions to the charge and to the rulings of the court on matters of evidence.
The plaintiff came to Burlington from the State of New York in the fall of 1912 and opened a millinery shop in a small store hired for the purpose. In December, 1912, she procured insurance on the contents of the store from the Orient Insurance Co., through its local agents, Powell & Marks. About three o’clock in the morning of January 16, 1913, a fire broke out in the store which entirely destroyed the contents. On receiving notice of the fire the defendant company referred the matter of the adjustment of the loss to a special agent in the New England territory, who procured the services of defendant Hayes, a private adjuster not in the general employ of the defendant company, to investigate the loss. Hayes interviewed the plaintiff and made certain investigations respecting the validity of her claim. The plaintiff went to Albany, N. Y., about the first of February. Upon or shortly after her arrival at Albany she took up the matter of her claim with the agents of the company and later employed an attorney there who was entrusted with the adjustment of the loss. While the negotiations were pending, Mr. Hopkins, the State’s attorney of Chittenden County, filed an information against the plaintiff charging her with having set the fire, which is the prosecution on which this suit is based. At this time the plaintiff was still out of the State. The State’s attorney applied to the Governor for requisition, but upon consideration the application was denied. Both Hayes and the
The principal questions raised by the motion for a directed verdict are: (1) Whether the defendants, or either of them, were in law responsible for the institution or continuance of the original proceeding complained of; (2) if so, whether there was evidence showing want of probable cause to believe that the prosecution could succeed; and (3) whether the necessary element of malice was present. In fact, the controlling questions are only two, for the malice that will support the action, though a separate question of fact, may be inferred prima facie from the proof of the want of probable cause. Barron v. Mason, 31 Vt. 189. In other words, want of probable cause affords evidence of malice; but want of probable cause and malice are independent facts, each essential to the cause of action, and proof of the one will not establish the other, as a matter of law. Carleton v. Taylor, 50 Vt. 220, 229; Briggs v. Burton, 44 Vt. 124, 148; Classon v. Staples, 42 Vt. 209, 222, 1 A. R. 316.
A question of vital importance in the administration of the criminal law is raised by the first ground of the motion. The. question has never arisen in this jurisdiction, although it has with some frequency been before the courts of other jurisdictions in recent years. The decided cases generally deal with prosecutions based upon the affidavit or complaint of a private individual,- in which case the person making the affidavit is usually regarded as the prosecutor and held liable as such. But under the present procedure for instituting criminal prosecutions in this State, where the complaint is made by a prosecuting officer elected for the purpose, a different situation arises. Prima facie the prosecution is instituted and conducted by the public prosecutor, and the plaintiff in a subsequent suit for malicious prosecution has the burden of showing that the defendant in such suit was directly responsible for the institution or continuance of
While a defendant in an action for malicious prosecution is sufficiently a prosecutor to sustain an action against him, if the prosecution to which the plaintiff is subjected is instituted by the State’s attorney at the defendant’s instance and request, something more is required than that the defendant be shown to have given infozmzation which set the machinery of the law in motion. Burnham v. Collateral Loan Co., supra. A defendant has not “caused a prosecution” in the sense that renders him liable when he acts only in subordination to the prosecuting attorney and under the latter’s directions; nor when he states the bare facts as to the plaintiff’s conduct to such attorney, leaving him to judge of the propriety of proceeding with the charge, where the attorney does not act in any way under the direction of the informant or the influence of the information thus received. The cases are in accord in holding that to sustain an action for malicious prosecution, where the proceeding complained of was begun by another, it must affirmatively appear as a part of the plaintiff’s case that the defendant was the proxi
The necessity that the defendant be shown to be the efficient cause of the prosecution to establish liability is variously expressed in the eases. Thus, it must be shown that the prosecuting officer acted under the direction or influence of the defendant, Burnham v. Collateral Loan Co., supra; that the prosecution proceeds by virtue of his authority or procurement, Knauer v. Morrow, 23 Kan. 360; that the prosecution was instituted at the instigation of the defendant, Cox v. Lauretsen, 126 Minn. 128, 147 N. W. 1093; that the defendant was responsible for the institution or continuance of the proceedings complained of, 18 R. C. L. 17; that the defendant’s advice or procurement was the proximate cause of the proceeding, note Ann. Cas. 1918A 487. The late justice Jaggard in his article on “Malicious Prosecution” (26 Cyc. 17) deduces this rule from the cases: “To sustain the action it must affirmatively appear as a part of the case of the party demanding damages that the party sought to be charged was the proximate and efficient cause of maliciously putting the law in motion.”
In Florida East Coast R. Co. v. Groves, 55 Fla. 436, 46 So. 294, the agent of a corporation, believing that a crime had been committed, stated all the material facts bearing on the transaction, so far as he was informed of them, to the county prosecuting officer with the names of witnesses who could give more detailed information, leaving the officer to act on his own judgment whether there should be a prosecution. It was held that the corporation would not be liable for a malicious prosecution, on the ground that the agent only did his duty in laying the facts before the prosecuting attorney. In Christy v. Rice, 152 Mich. 563, 116 N. W. 200, the defendant applied to the prosecuting attorney to institute a prosecution against the plaintiff for perjury and was denied a warrant until the attorney had made an independent investigation of the facts and was informed that the latter would act only upon his own investigation. Later the defendant at the attorney’s request swore to a complaint which the attorney had prepared. The evidence was undisputed that
Plaintiff’s counsel recognize the rule given above as applicable to the case, and the trial court submitted the issue to the jury in language that was unexceptionable, if there was evidence fairly and reasonably tending to support the claim of liability in this regard. The presence of such evidence would make the question one of fact for the jury; but the burden being with the plaintiff, failure to make the necessary proof is a valid ground of a motion for a directed verdict.
The only basis of the claimed liability of the defendant company was the conduct of Hayes as its agent. So, if on the evidence Hayes should be exonerated, the company cannot be held liable. For the présent then we are only concerned with Hayes’ relations to the prosecution. Was there evidence on which a jury would be justified in finding that he was the proximate. and efficient cause of the institution or continuance of plaintiff’s prosecution1? There was no suggestion in the evidence that the State’s attorney acted in any other capacity than as a public prosecutor. The ultimate question is whether there was evidence fairly tending to show that Hayes’ conduct in the matter in any way exerted a controlling influence over the action of Hopkins as a public prosecutor. Naturally the testimony of Hopkins was of primary importance on this issue. From his
In spite -of repeated attempts to get him to admit that he acted on the strength of Hayes’ statements, the most the plaintiff was able to show was that such statements were merely used as a basis for investigation. It could not be fairly claimed on the’ evidence that Hayes ’ statements, either in writing or as communicated through Niles, were in any true sense the proximate and efficient cause of plaintiff’s prosecution. The fair import of Hopkins’ testimony was an unqualified assumption of full responsibility for the institution and subsequent prosecution of the criminal charge against her. It appeared from Niles’ testimony that he talked with the State’s attorney about this fire at Hayes’ request; that Hayes had talked with him several times about the plaintiff having set the fire and said he thought he had a case against her. It did not appear, however, that these facts were communicated to Hopkins, and so they could not have influenced his action.
Much is made of the claim that Hayes did not fully and truthfully report to Hopkins what the plaintiff told him in his interview with her. In her testimony the plaintiff denied having told Hayes certain things which the latter reported to Hopkins as coming from her and claimed to have told him certain other things that were omitted in his report. In some circumstances the issue thus raised would take the case to the jury. The rule invoked by the plaintiff that to escape liability an informant must fairly and truthfully disclose to the prosecuting attorney all matters within his knowledge which, as a man of ordinary intelligence, he is bound to suppose would have a material bearing upon the question of the innocence or guilt of the person suspected, though well settled, has its limitations. It would apply where the action taken by the prosecuting attorney was influenced by the facts disclosed; in which case, the question is one of probable cause as affected by advice of counsel. But, as here, where the action of the prosecuting attorney was uninfluenced
The circumstances attending the arrest and subsequent prosecution of the plaintiff present a somewhat' different feature of the motion for a directed verdict. Shortly after the application for requisition had been denied by the Governor, Hayes and Hopkins had a meeting at Burlington at which measures for getting the plaintiff within the reach of process were devised. There was no substantial disagreement in the testimony respecting the relations of the parties to this transaction. Hopkins testified that, to prevent what he deemed a miscarriage of justice, he at once after his application for requisition was refused, set about finding some way to secure the plaintiff’s arrest. After consulting with the Attorney-General he wrote to Hayes thinking to get some information or assistance from him. In brief, he told Hayes that the Governor had refused requisition, that he wanted to have the plaintiff arrested, and asked if he would inform him should the plaintiff return to the State. Either by letter in reply or in the subsequent interview at Burlington, Hayes called attention to a provision of the policy under which the plaintiff could be required to come to Burlington for examination and proposed a scheme to get her to come back so that she could be arrested. Hopkins approved of the plan and asked Hayes to assist in carrying it out. During the interview Hayes raised the question whether, if he should give the assistance proposed, it would make him liable to a prosecution or to an action. Hopkins told him that the Governor had “turned down” the requisition without just cause, in his judgment; that on the evidence and information in his possession there was probable cause for the prosecution; that by all means he thought the plaintiff should be prosecuted and every means taken to apprehend her; that it was Hayes’ duty as a citizen to render all the assistance he could in that respect; that he certainly would not make himself liable by doing so, as there was no question whatever about there being probable cause for the prosecution, in which case he could not be liable for any assistance that he should render in getting the plaintiff apprehended in any possible way it could be done. Hayes finally agreed that the company would have the plaintiff in the State at some time for an examination, or for an adjustment or settlement of her claim, when Hopkins
The actions of Hayes and the company in this connection did not make either of them liable as prosecutors of the criminal charge. The company was acting strictly within its rights under the policy; and, so far as anything Hayes did personally or as a representative of the company, he was acting at the request and under the direction of the prosecuting officer. Hopkins and not the defendants determined that the prosecution should continue in spite of the Governor’s action. There was no evidence fairly tending to show that anything that either of the defendants said or did in the slightest degree influenced his judgment in this regard. There was no time when it could be said that the prosecution received a fresh impulse from an outside source. It was begun and continued throughout under the direction and control of the State, represented by the State’s attorney and his advisor, the Attorney-General. They made use of Hayes as a means of accomplishing their purpose and never for a moment even ceased to be the “proximate and efficient cause” of the continuance of the prosecution. Whether they were justified in the means adopted to secure the plaintiff’s arrest is beside the question. They were in possession of all the facts disclosed by an independent investigation, much of which, so far as appears, may have been unknown to either of the defendants, and as ex
It must be held that the plaintiff failed to discharge the burden of showing that the defendants, one or both, were legally responsible either for the institution or continuance of the prosecution complained of. The defendants’ motion for a directed verdict should have been sustained. This holding makes it unnecessary to consider the other questions raised by the exceptions.
Judgment reversed and judgment for the defendants to recover their costs.
On Motion nor Reargument.
After the foregoing opinion was handed down counsel for the plaintiff had leave to file a motion for reargument, pending which the entry of judgment has been withheld.
For the most part the motion offends the well recognized rules respecting motions for reargument. It is not enough to assert that the Court has failed to consider “certain evidence in the record” tending to support the plaintiff’s claim at the hearing, but the motion must point out specifically ma
When, as in this case, a voluminous transcript is made the record, failure to point out in the brief on argument the evidence relied upon places an unnecessary burden on the Court of searching for evidence to support the judgment. Indeed, our rule so often announced does not require the Court to search the transcript to see if anything can be found to support the judgment. Davis v. Boston & Maine R. Co., 86 Vt. 205, 208, 84 Atl. 818. But it should not be assumed that the record has not been searched, notwithstanding such failure. The plaintiff has no occasion to complain in this case for the transcript -was carefully searched for any evidence fairly tending to sho"w that Hopkins did not act throughout the prosecution on his own judgment as a public prosecutor, which wms the vital question in the case as presented. We could very properly dismiss the motion wdthout saying more; but to make certain that no point relied upon in 'the brief on argument had been overlooked it has been carefully re-examined.
The claim that the prosecution on which the action is based was instituted and conducted by Hopkins as State’s attorney was insisted upon by the defendants at the trial and was fairly presented in their brief in this Court. The plaintiff’s answer to the claim was in effect that there -was evidence tending to show that the defendants instigated the prosecution and voluntarily furthered it throughout. However, the evidence relied upon did not meet the requirements of the law applicable to a case where the proceeding complained of is commenced and prosecuted by the State’s attorney. For cogent reasons it is held that in such case the plaintiff in a subsequent suit against a third party for malicious prosecution has the burden of showing that the defendant was directly responsible for the proceeding in the sense that he was the proximate and efficient- cause of the prosecution. Short of this one who may have been instrumental in setting the law in motion cannot be made liable as for a malicious prosecution. The thing complained of is the act of another — the State’s prosecuting officer — for which he is not legally responsible unless it is shown that his conduct so influenced the action of the prosecutor as to be the proximate and efficient cause of the
Respecting the claim advanced in the motion that Hopkins was a joint tort-feasor with the defendants, it is enough to say that it comes too late to be available as a ground for re-argument. While it is conceivable that a case might arise in which the complainant and the prosecuting officer would be jointly liable, such was not the theory on which this case was tried below or argued here. Manifestly a new question is presented by this ground of the motion.
Finally, what is said concerning the effect given Hopkins’ testimony overlooks several important considerations. It is not claimed that there was any conflict in the evidence respecting what Hopkins did, but the point is made that a jury would 'not be bound to believe what he said and would be at liberty'to infer (against the fair import of his testimony) that the defendants instigated the prosecution and voluntarily furthered its continuance. Counsel fail to take into account the presumption attending official actions, which are presumed to be regular unless the contrary is made to appear. Sargent v. Shepard, 94 Vt. 351, 111 Atl. 447. The presumption is, of course, rebuttable; but it stands until overcome by evidence. McKinstry v. Collins, 76 Vt. 221, 233, 56 Atl. 985. It cannot be removed by mere argument. The important, if not controlling, matters developed by Hopkins’ testimony related to what he did. Starting with Hayes ’ written statement as a basis of investigation, he employed the means provided by law to determine whether there was probable cause for the prosecution. It must be presumed, the contrary not appearing, that his investigations disclosed probable cause. The fact that he thereupon issued the information and persisted in pressing the prosecution is sufficient of itself to show that he assumed the responsibility. That he in effect so testified
Motion overruled.