160 Ky. 533 | Ky. Ct. App. | 1914
Opinion of the Court by
Affirming.
Early in the year 1910, a number of insurance companies doing business in Louisville learned that they were being defrauded as the result of a conspiracy of their agents to procure insurance upon the lives of unfit persons by false applications and answers, and by the substitution of healthy persons for examination in lieu of the unfit persons named in the applications. The com
The only question we deem it necessary to consider on the appeal is whether there was any evidence tending to show that the prosecution was without probable cause. In Newell on Malicious Prosecutions, page 10, it is said:
“The want of probable cause is the essential ground of the action. * * * The burden of proof is upon the plaintiff to prove affirmatively, by circumstances or otherwise, as he may be able, that the defendant had no ground for commencing the prosecution.”
Again on page 276 he says:
“Whether the circumstances alleged to show it probable are true and existed is a matter of fact, to be determined by the jury, but whether, supposing this to be
To same effect see Marshall v. Maddock, Lieetll’s Select Cases, 106; Yocum v. Polly, 1 B. Mon., 358; Roberts v. Thomas, 135 Ky., 63; Hudson v. Nolen, 142 Ky., 824. In Burks v. Ferriell, 26 R., 37, we said:
“Even if appellee had actually been innocent of the offense charged, yet if appellant, when the warrant was obtained, had actually reasonable grounds to believe and did believe that appellee was guilty of the offense, he can not be mulched in damages for having procured the warrant. If the law was otherwise it would be a great hindrance and almost an impossibility to have the criminal law of the Commonwealth enforced. Individuals would be afraid to put the criminal law in motion for fear that they would be made responsible in damages, if perchance, it turned out that the party prosecuted was innocent.”
What facts and circumstances amount to probable cause is a question of law. Whether they exist or not in any particular case where the evidence is conflicting is a question of fact to be determined by the jury. But where there is no conflict in the evidence, whether the facts shown amount to probable cause is ordinarily a question of law for the court. (Ahrens & Ott v. Hoeher, 106 Ky., 694; Metropolitan Life Ins. Co. v. Miller, 114 Ky., 754: Providence, etc., Associated Society v. Johnson, 115 Ky., 84; Farris v. Starke, 3 B. Mon., 4; Alexander v. Reid, 19 R., 1636; Moore v. Large, 20 R., 409.)
In Garrard v. Willet, 4 J. J. M., 630, this court said:
“When a grand jury, upon other testimony than that of the prosecutor alone, find an indictment to be a true bill, the presumption is prima facie, that, as they, on their oaths, have said that the person indicted is guilty, the prosecutor had reasonable grounds for the prosecution. Nevertheless, the law still presumes that the person indicted is innocent. But this presumption will not repeal the inference that there was ‘probable cause.’ And consequently, the final acquittal of the accused will not, per se, prove a want of ‘probable cause.’ ”
To same effect see Branham v. Berry, 4 R., 414; Jones v. L. & N. R. R. Co., 29 R., 946.
It remains to determine under these authorities whether there was any evidence tending to show a want of probable cause for the prosecution; for if there was any evidence of a want of probable cause, the question
“We are called upon to determine whether or not the insurance company, assuming that they procured the in
“There is no evidence here at all that the real men who applied for these three policies of insurance, Rider, Cassell, Flannery, there is no proof tending to show here, gentlemen, that any one of those three men who applied for this insurance, was examined by Doctor Schott. On the contrary, the proof convinces this court, and I think counsel in the preparation and presentation of the case concede to themselves and to the court, in fact, that there were substitutions there and that Doctor Schott had been fraudulently procured to certify as to the health and family history, and so forth, of these people by examining a healthy man upon a sick man's application. These were the facts that were before the insurance company, and this court is to determine what a reasonably prudent man would do under circumstances like that.”
We concur with the circuit court in the conclusion that on the admitted facts shown by the plaintiff’s evidence, there was probable cause for the prosecution, although it afterwards turned out that Dr. Schott was in fact imposed upon by the insurance agents. The rule as to when a peremptory instruction should be given in actions for malicious prosecution- is not different from
Judgment affirmed.