88 Md. 459 | Md. | 1898
delivered the opinion of the Court.
This suit is an action for malicious prosecution. One of the instructions asked for by the defendants being that there was no evidence sufficient in law to enable the plaintiff to recover, it becomes necessary to examine all the evidence offered at the trial. On the 16th of February, 1897, the appellee was charged with the larceny of certain books, valued at $2,500, belonging to the C. H. Pearson Packing Company, and subsequently was tried on indictment, and acquitted by the Criminal Court of Baltimore City.
It is charged in the narr. that the arrest was maliciously procured by the appellants without probable cause. The evidence shows that the books referred to in the indictment were valuable because of their containing what are called “ The Quoting Lists ” of the Pearson Packing Company. These lists are the names of persons to whom the company quoted prices of raw oysters with the expectation of doing business with them. They had been compiled at much expense and were valuable on that account as well as because of the use made of them in the course of business. Two sets of these Quoting Lists had been originally made by the company; one in 1892 containing about 30,000 names; another in 1895 containing about 18,000 names. In July, 1896, it appears that Mr. Pearson burned the lists of 1895, the reason he gave for so doing being that the books had become dilapidated. Prior to this he had had a copy of the set made in new books, from which .were omitted, however, some four thousand names of persons from whom no responses had been received. This copy of the 1895 set, which will be called the third set, was made by the appellee and others at the direction of Mr. Pearson. At the same time, with the consent of Pearson — who was then president of the packing company— the appellee, who was then a director of the company and also its secretary, made a copy of the set of 1895 for his own use which he afterwards used in the prosecution of his own business. There are, therefore, four sets of Quoting Lists referred to in the evidence, viz.,
It is the original list of 1895 that is referred to in the indictment as having been stolen by the appellee from the packing company. To comprehend the grounds upon which the appellants claim that probable cause existed for procuring the arrest and prosecution of the appellee, it is necessary to state something of the history of the appellee and his connection with the packing company, Mr. Pearson and the appellants.. In 1888 the appellee went into the employment as bookkeeper of Mr. C. H. Pearson, who was then engaged in the oyster business. After the concern became a corporation the Torschs held its stock to the amount of $12,000. The appellee remained in its employment — at first as a bookkeeper, and afterwards as its secretary and treasurer. Pearson controlled a majority of the stock, and to secure to himself the majority of the votes in the board, he caused to be elected as directors the appellee and two other persons, to each of whom he had sold a share of the stock. He then had four votes in the board which consisted of seven members. The affairs of the new corporation, however, did not go on with much smoothness. The appellee in his testimony says that in the directors’ meetings, “ The Torsch brothers were always siding together and Mr. Pearson was always at odds with them.” It is not worth while here to enter into the details of these differences, except to say that they seem to have grown out of the frequent applications of the company to the Torschs for financial aid.
In 1894 these differences culminated and the Torschs, in February of that year, filed a bill to compel Pearson to restore the sum of $8,000, which they alleged the latter had misappropriated out of the funds of the company. This suit was fiercely litigated for more than a year. The appellee sympathized with Mr. Pearson, and aided him by giving him assistance, and his vote in the meeting of the directors. During the progress of the suit much testimony was taken. Among other things,
On the fifteenth day of October the Torschs asked and obtained of the trustees permission to examine the books of the company; and the appellee, who had been retained by the trustees, was present as their representative when the examination was made. All the safes were opened, and they were allowed to see the books, ledgers, etc. Mr. Torsch asked the appellee to see “ the quoting list of the company for the raw oyster business.” The appellee took out twelve green books and Mr. Torsch examined them and asked, “ are these the quoting lists of the company? ” and the appellee said, “ yes, these are the lists.” This is substantially the account
However this may be, it is not questioned that the books of 1895, or the copies thereof, were not then seen by him, and that the green books contained the lists of 1892. Two days after this, the appellee gave evidence in the proceedings for the return of the property, and testified that in addition to the copy made by himself and others he had made another copy of the list of 1895, for his own use, at a time when he anticipated going into business on his own account. In January, 1897, the Court having ordered the return of the property, the company resumed business. It was soon ascertained that the lists contained in the green books were not those of 1895, but of 1892. The secretary then wrote to the trustees for the quoting lists in use at the time of the assignment, and received a reply that everything that had been in their possession had been turned over to the company. He then addressed letters to Pearson, Hawkins, and the appellee, the members of the new firm, making of each the same request. The appellee replied by telephone that “ the trade lists were on the shelf, behind the other books, in the office of the secretary, treasurer,” etc. There the copy of the lists of 1895 was found. The secretary then, on February 9th, 1897, wrote to the appellee another letter, as follows: “We have found the hidden books, where you stated they could be found, but as they are copies, we renew our demand for the original books, described in our last letter, and we require you to deliver them on or before February 10th, 1897.” Upon the advice of counsel the appellee made no reply to this. On the 16th of February he was arrested and required to give bail. On the 19th he was indicted for stealing the books, and on the 23rd, tried and acquitted.
In all the facts, as we have stated them, we find noth
Even if it were contended that they did honestly so believe, in view of the fact that the appellee had a copy of his own and the appellants knew it, such a contention could not be entertained. If it be conceded that the Torschs did not know that the lists of 1895 had been burned by Pearson, the mere fact that they were missing and could not be found, either standing alone or coupled with any or all of the facts then within the knowledge of the appellants as shown in the record, could not warrant a reasonable belief on the part of a cautious man that the appellee, who had been for many years a trusted and trustworthy employee, charged with the performance of important responsibilities which he had performed faithfully, had purloined the books for the purpose either of benefiting himself or of injuring
It is contended, however, that the appellants acted without malice. Malice is ordinarily a question of law and fact, but wrhen the facts are conceded, it is a question of law to be determined by the Court. Its existence will generally be inferred from the want of probable cause, though such an inference affords only a prima facie presumption that may be rebutted by the circumstances. Boyd v. Cross, supra.
Having determined there was no evidence from which the jury could find probable cause, and malice being prima facie presumable therefrom, the burden of proof rested on the appellants to show such a state of facts as would warrant the jury in finding that they were not actuated by malice. If the evidence is conflicting, or the facts presented by it are doubtful in their effect; or are such as have only an indirect bearing on the matter in issue; or in other words, if it be questionable whether the circumstances exist that are relied on to rebut the malice inferable from want of probable cause — in all such cases questions of fact are presented that must go to the jury for their decision, subject to the instructions of the Court as to their legal effect. Thelin v. Dorsey, 59 Md. 544, and cases there cited. Now was there in this case such a state of the proof as to warrant the Court in instructing the jury, that though the appellants acted without probable cause, yet they must find they acted without malice? For it is obvious that to enable the Court to direct them to find for the defendants, it was
It may be stated here that the meaning of the word “ malice ” in this form of action is well settled. It is not to be regarded as merely a feeling of spite or hatred towards the individual, but as being any such mind that denotes that the party is actuated by improper and indirect motives; and therefore it was said in Johns v. Marsh, 52 Md. 333, “ if a prosecution is initiated upon weak and unsubstantial ground, for purposes of annoyance or of frightening and coercing the party prosecuted, into the settlement of a demand, the surrender of goods or for the accomplishment of any other object, aside from the apparent object of the prosecution, and the vindication of public justice, the party who puts the criminal law in motion under such circumstances lays himself open to the charge of being actuated by malice. Such motives are indirect and improper, and for the gratification of which the criminal law should not be made the instrument.”
The appellants’ principal reliance to exonerate themselves from the charge of being actuated by improper "motives, is that they acted under the advice of counsel. Now to justify them in instigating the prosecution, on this ground, where there is absence of probable cause, they must show that they acted in good faith upon the advice of counsel, given upon a full representation of all the facts. Cooper v. Utterbach, 37 Md. 315. Is the evidence on these points so conclusive as to leave nothing for the jury to determine? First as to their good faith; that is, did the appellants, upon the weak, unsubstantial grounds that have been stated, instigate the prosecution for the vindication of public justice, or for indirect and improper motives, for the gratification of which the law should not be made the instrument? One of the Torschs stated in his testimony that the object of the prosecution was “ not to have him punished criminally, but to get the books.” He had gone to the Trust Company, with whom the appellee had bonded, thinking it could exercise an influence that would cause him to
Second. Were the representations made to the prosecuting officer a full statement of- all the facts in the case? Mr. Carr made a statement to him and also Mr. Torsch. Was Mr. Carr’s knowledge co-extensive with that of the appellants’? The testimony of Mr. Charles H. Torsch leaves it an open question as to how much Mr. Carr did know. According to Mr. Torsch, Mr. Carr did not know or tell that- there was three lists of 1895, one an original and two copies, or whether the copies of 1895 were correct or not. Neither Mr. Carr nor Mr. Torsch, according to the statement of the State’s attorney, told anything about the appellee himself, his career or his character, nor of the three copies of the lists of 1895, one of which the appellee had kept himself, nor of the letter to the appellee asking for the books, nor of the reply and the finding of the copy on the shelf. What was told the State’s attorney states in his testimony, and it was that Torsch had gained control of the Pearson Company; that there were books they desired to secure the control of; that they had made demands on the appellee for the books, and he had replied, stating where they could be found; that they had gone there but could not find them, and that they wanted to go before the grand jury. Whether the statement of the State’s attorney was correct or not was a matter
We are, therefore, of the opinion that the Court properly refused to take the case from the jury. We have already gone so fully into the question presented by the record that we deem it unnecessary to take up seriatim the several prayers offered by the respective parties. We have examined them all carefully and are of the opinion that the whole case was properly presented to the jury. For these reasons the judgment will be affirmed.
Judgment affirmed.