158 Ky. 241 | Ky. Ct. App. | 1914
Opinion op the Court by
Affirming.
This appeal is proseented from a $625.00 judgment recovered by Nora B. Arnold, the appellee, in a suit for malicious prosecution. Appellant seeks a reversal for three reasons: (1) It insists the court should have directed a verdict in its favor because the evidence was insufficient to show a want of probable cause, or any malice. (2) The verdict is contrary to the evidence. (3) Because the court refused to permit appellant to prove either in defense, or mitigation that the official judgment in the police court, where appellee was dismissed, was not in harmony with the private opinion of the judge.
We think a statement of the facts is decisive of the two objections first named. The appellee was a resident of Eminence, in Henry County, some thirty miles from Louisville, and during December, 1911, went down to Louisville to spend the day with Miss O’Nan, a cousin. In the morning she was in the hands of a dentist, and jumping from the frying pan into the fire, she landed in appellant’s store in the afternoon. The establishment is one of the largest in Louisville, selling all kinds of merchandise, and employing hundreds of clerks and attendants. On a large counter, near the center of the first floor, was a big lot of ladies gloves on bargain sale, at 69 cents the pair. Appellee, and her companion, Miss O’Nan, each desired a pair of tan gloves, and going to the counter, amidst the crowd of Christmas holiday shoppers, they were told, by the lady in charge, to wait on themselves, that is, to make their own selection from the gloves piled on the counter, and at this hour they must have been piled indiscriminately. After some lit-
Plying her with innumerable questions, and in answer to their inquiry, she told them her name, and place of residence. Learning that Eminence was her home, Jones sent for an employee, who knew the people of Eminence, and naming to her many of them, she asserted that she knew them all. Finally Jones suggested that his employee call Helburn Brothers, who were merchants at Eminence, and make inquiry about the prisoner. The inquiry was made over a telephone in Jones’ office in the hearing of Mrs. Arnold. All the witnesses agree that Helburn replied that the woman was of good character, had never been in any trouble, and that he was very much surprised to hear of the charge against her. Mrs. Arnold swears that this employee also reported that Helburn said he would stand good fern any account, or charge they had against Mrs. Arnold. Helburn substantially corroborates this. Mrs. Arnold swears she protested her innocence of any intent to steal the gloves, while Jones and Bremer insist that she never denied it. Doubtless they felt that from the mere fact that the gloves were in her hand she was guilty of larceny, and when she did not deny having the gloves, they assumed that she did not deny taking them with the intent to carry away, and appropriate them to her own use. Not satisfied with the proof of her good character from her home town, and with her own explanation, and without giving her an opportunity to call Miss O’Nan, her companion, they sent for the police. As the police were about ready to take her to the station, Miss O’Nan was permitted to come into the superintendent’s office for a few moments. Jones, Bremer, and the policeman deny that they refused Miss O’Nan permission to go to the station with the prisoner, although Miss O’Nan, and appellee swear they begged this privilege. It is sufficient to say that .she was not one of the party, and had to get to the station to join her relatives as best she could. After detaining them another hour, Miss O’Nan got in communication with a friend in the city, who hurried there, and made bond for the prisoner. Trial was set for Monday.
Appellant had an attorney employed to aid the city prosecutor, and it is admitted that after a full hearing
Jones, the superintendent, swore to the affidavit for her arrest. The only facts- known to him upon which to base the affidavit were the statements above referred to, made by his private detective, and the gloves which were said to have been taken from the appellee. He says he never heard of the lady before, and therefore could have had no malice against her, but the flimsiness of the charge, and the character of facts supporting it, make it all the more necessary that he should investigate carefully for further facts and make inquiry as to her previous reputation. No further facts being developed, and her good character sustained, malice is to be presumed. We are also of opinion that her arrest was without probable cause, as judged by this record. Appellant may have had cause to suspect that from time to time thieves were guilty of shoplifting, and there may have been good cause to employ private detectives, and watchmen to apprehend such persons, but the question here is whether or not there was probable cause for believing Mrs. Arnold was guilty of such an offense. The mere fact that appellant’s employes may have believed that articles of merchandise were from time to time stolen, did not justify them in seeking to make an example of this lady in an effort to deter others from committing the offense. To justify their conduct with reference to this lady, it must appear that she was guilty, or they had probable cause to believe her so. The evidence discloses beyond any question that she was not guilty, and we are of opinion that there was not only want of probable cause, but absolutely no excuse for her arrest. Of
“The law, therefore, protects the prosecutor if he has reasonable or probable cause for the prosecution; that is, if he had such grounds as would induce a man of ordinary prudence and discretion to believe in the guilt and expect the conviction of the person suspected, and if he acts in good faith on such belief and expectation. ’ ’
The court was eminently fair to appellant. Under its instructions the jury, in order to find for appellee, were required to believe the prosecution was instigated not only with malice, but without probable cause, and these questions were submitted in a very clear and concise way. As above indicated, we think the jury was abundantly justified in the conclusion they arrived at, and the appellant should not complain at the size of the verdict.
The remaining question is wnether it was competent for appellant to plead, or introduce evidence to show by extraneous facts that the record judgment of Judge Boldrick, of the police court, in dismissing the prosecution did not disclose his motives for so dismissing. Proof of these motives appellant sought to supply. The lower court quite properly declined to enter into this inquiry. This court will presume that every magistrate has acted in good faith, and with honest purposes, and the police court judgment dismissing the charge must speak for itself. Of course, an action for malicious prosecution cannot be maintained where the prosecution has been terminated through collusion, compromise, or agreement between the accused and the complaining party. But such state of affairs is not even pretended here. Appellant’s complaint is that he was denied the right to introduce evidence showing appellee was dis
The judgment of the lower court is affirmed.