Hines v. Bowling

272 F. 230, 1921 U.S. App. LEXIS 1607

• Court: Court of Appeals for the Fourth Circuit
• Decided: February 9, 1921
• Docket: No. 1837
• Status: Published

Opinion

BOYD, District Judge

(after stating the facts as above). In the discussion of the case the defendant in error will be referred to as plaintiff, and the plaintiff in error as defendant.

In the inception of this case the proposition suggests itself that, when the transaction upon which the plaintiff bases his cause of action took place, the railroad from which the stolen articles were taken was being operated by the Director General of Railroads, acting by authority of the President of the United States, who had taken possession and control of this railroad, among other lines of transportation in the country, under acts of Congress authorizing such action, to aid in carrying on the war with Germany. The question which arises is whether or not, under such circumstances, malice or wrongful motive can be imputed to the Chief Executive, who was performing an official function,-or to the Director General, his alter ego, and made the ground of damages at the instance of an individual in a suit against the latter. Plowever, this proposition was not relied upon, nor argued by defendant’s counsel, and we do not deem it necessary to pass upon it in order to dispose of the case. We are of the opinion that, upon the undisputed facts disclosed by the testimony, the trial judge should have dismissed the .case, or directed a verdict for the defendant.

[1] It is well settled that there must be two essential concurring elements in order to authorize a recovery in a suit seeking damages for malicious prosecution, and these essential elements are malice and want of probable cause. Beginning with the Supreme Court of Hie United States, the American decisions generally are in entire harmony to the effect that, in order to maintain an action seeking damages for malicious prosecution, these two essentials must exist. Mr. Justice Hunt, delivering the opinion of the court in Stacey v. Emery, 97 U. S. 642, 24 L. Ed. 1035, quotes from Munns v. Dupont De Nemours, 3 Wash. C. C. 37, Fed. Cas. No. 9926, as follows.:

“Tf malice is proved, and yet probable cause exists, there is no liability. Malice and want of probable cause must both exist,” to justify an action.

“To make out a cause of action in malicious prosecution, malice and want of probable cause must concur. It is not sufficient to show merely that the action was maliciously prosecuted; it must also appear that it was commenced or continued without probable cause.” 20 Cyclopedia of Law and Procedure, 21.

We do not deem it necessary to cite further from the numerous authorities in this country which sustain the principle. We may say, however, that the doctrine is not confined to the United States, but is also the law in England. As far back as the case of Farmer v. Darling, 4 Burr. 1791, cited in Stewart v. Sonnehorn, 98 U. S. 187, 25 L. Ed. 116, which was a malicious prosecution case, Lord Mansfield instructed the jury “that the foundation of the action was malice,” and all the judges concurred that “malice, either express' or implied, and the want of probable cause, must both concur.”

[2] The case presents itself in another view, which, when considered in accordance with the facts and applying the rule of law as we understand it, prevents recovery of damages. Peerman did not proceed to have Bowling arrested upon his own initiative, but he laid the case, with the evidence he had obtained, before the commissioner, and if the commissioner, acting on his own judgment, made a mistake in issuing the warrant, neither Peerman, the agent, nor the Director General, as the principal, would be chargeable with damages. This position is sustained in the case of Oakley v. Tate, 118 N. C. 233, 24 S. E. 806.

There is nothing in the evidence to warrant the conclusion or raise the presumption that Peerman was prompted by any sinister or improper motive in the action he took in the investigation of the alleged theft. There are no facts or circumstances disclosed showing or tending to show that he had prejudice or ill will toward Bowling; indeed, it is developed from the testimony that he did not know Bowling, and. Bowling was not acquainted with him, anterior to the time they met at Princeton on the occasion of the investigation. We go further, to say that Peerman, instead of showing unnecessary zeal, it seems to us, acted in a very prudent and cautious manner. When he was informed that Belcher had been seen with some of the stolen cigarettes, he sought him, and learned from him that Powell had also taken articles from the car. Peerman then interviewed Powell, and from the two he learned the names of the others who were present at work about the car when the property was stolen.

We think these facts, with other circumstances connected with the offense which were brought to Peerman’s knowledge, were adequate to negative any presumption of malice or improper purpose in the action he took. It is not denied that plaintiff was present and saw what was going on, nor is it suggested that he discountenanced or undertook by word or act to prevent the theft. Under such circumstances an honest belief that plaintiff participated in the theft was not at all unreasonable. Yet, instead of making an affidavit himself upon information and belief, he carried Belcher and Powell before the commissioner, who himself examined them, and upon their statements he formed his conclusion as to those engaged in the theft. The commissioner acted on his own judgment, took the affidavit of Powell, and issued his warrant for the arrest of those he believed to have been participants in the offense, and among them the plaintiff.

It is not necessary, in our opinion, to discuss specifically the exceptions of defendant’s counsel to the instructions given by the court to the jury, for there was no evidence sufficient to warrant a verdict for the plaintiff, even under these instructions. Our conclusion is that there should be a reversal of the judgment of the trial court, and the case remanded, in order that a new trial may be granted, and further proceedings had therein in accordance with the views we express.

Reversed.