Appellee, who was defendant below, operates a grocery store in the Southeast section of the City. For a number of days he had suffered losses by theft of merchandise left in front of his store before opening hours. Appellants, who were plaintiffs below, were schoolboys in their middle teens who operated delivery routes for a morning newspaper in the same section of the City but in different directions. The two boys were charged with the theft of two cartons of tomatoes from the front of defendant’s store, were prosecuted in the Juvenile Court, tried by a jury and acquitted. Thereupon they brought these actions for malicious prosecution. The trial court directed verdicts against them and from the judgments entered on such verdicts, they appeal.
At the trial of this case there was evidence tending to show that appellants had nothing whatever to do with the theft and had never been guilty or charged with being guilty of any similar or other offense in their lifetime; that one Sanford was the manager of defendant’s store; that he
Some parts of this evidence were corroborated or actually adduced by the defense; other parts the defense explained and still others it directly contradicted.
The motion for an instructed verdict was made upon the conclusion of all the evidence and was on the grounds that probable cause had been shown; that there was no proof of malice; that there was no evidence that defendant was connected with the arrest or prosecution; that defendant’s, employee Sanford did not instigate or order, and was not in any way responsible for, the arrest; and that there was no evidence that Sanford had authority to prosecute the plaintiffs or to order their prosecution. The trial judge granted the motion and took the case from the jury.
The propriety of that ruling is before us for review. Express malice is not claimed and it is conceded that malice in law can only be inferred if want of probable cause be first established. Our decision therefore will determine whether there was sufficient evidence of want of probable cause to require submission to the jury. We think there was.
The test is not whether plaintiffs’ case when weighed- against defendant’s was strong or weak, for the question of preponderance is not involved in a motion for a peremptory instruction. The court must assume “that the evidence for the opposing party proves all that it reasonably may be found sufficient to establish, and that from such facts there should be drawn in favor of the latter all the inferences that fairly are deducible from them.” Gunning v. Cooley,
As was stated in Staples v. Johnson,
Nor is direct proof of those elements necessary. “It was open to the jury * * * to say, from a consideration of all the evidence, whether or not the charge had been made out.” Moses v. Lockwood,
To paraphrase what was said in Mt. Vernon Co. v. McKenney,
Here, as in the very recent case of Melvin v. Pence,
The same rule, of course, applies to the issue of Sanford’s authority, the extent to which he exercised it, what part he took in the instigation of the charge and its subsequent prosecution, to what extent Friedman participated in the prosecution, and the other issues of fact presented in the evidence.
Conflict in the evidence there was; but that conflict was essentially factual and not legal. In such situations courts must leave jury questions to the jury; otherwise “trial by jury becomes trial by court”.
Reversed and remanded, with instructions to award a new trial.
Notes
Christie v. Callahan,