Goldstein v. Rau , 147 Md. 6 ( 1925 )

Appellants are two of five defendants who were sued for malicious prosecution by the appellee, one of the other defendants having been returned non est, and the verdict having been in favor of the other two under instructions of the trial court.

The narr. alleges that the defendants and each of them did, on or about February 24th, 1921, charge upon oath before Magistrate Chapman, one of the police justices of Baltimore City, that the plaintiff owned and maintained a dog in violation of Ordinance No. 138, by allowing said dog to disturb a certain neighborhood; that as a result of such charge a warrant was served on the plaintiff at her home, by a police officer who took her into custody, placed her in an automobile of the Police Department of Baltimore City and transported her over the public highways of said city to the Northwestern Police Station, "where she was docketed as a prisoner, searched, and forthwith placed in a cell for a considerable time," until subsequently released on bail, plaintiff having prayed a jury trial, that the said defendants, and each of them, made the aforesaid charges and accusations against the plaintiff from motives of malice and that there was no reasonable or probable cause; that the said defendants and each of them falsely and maliciously and without cause procured the plaintiff to be indicted upon the unfounded charge of violating said ordinance "by allowing her dog to disturb a certain neighborhood," on which charge she was duly tried and acquitted, "in consequence whereof the plaintiff has suffered great pain and mental anxiety, has been put to great cost and expense and is otherwise injured and damaged." Defendants filed general issue pleas. A verdict was found against appellant for $150. On motion of appellants a new trial was granted, and on a second trial a verdict was found by a jury against appellants for $250. This appeal is from a judgment on that verdict.

The one bill of exception is to the ruling of the trial court "in granting the plaintiff's second and third prayers, and in rejecting the defendant, Nettie Goldstein's, first, second and third prayers, and in rejecting the defendant, Oscar Cecil's, `defendant's prayer' and his third and fourth prayer. The reporter is requested to set out plaintiff's granted prayers and all the prayers of the defendants.

We find no error in the ruling on any of the prayers.

Plaintiff's second prayer simply defines "probable cause." Her third is the usual measure of damages prayer.

The defendant Nettie Goldstein's first rejected prayer, and the rejected prayer of Oscar Cecil marked "prayer of the defendant, Oscar Cecil," are demurrers to the evidence. These will be discussed later.

The third prayer of the defendant Goldstein was properly refused because it is argumentative, and so far as it is a demurrer to the evidence, is covered by her first prayer.

Her second prayer is a variance prayer and does not set out in what the variance consists.

Defendant Oscar Cecil's first prayer was withdrawn and his second prayer was granted as amended. His third prayer was properly refused because it sought to have submitted to the jury only the fact as to whether or not the said defendant swore out the warrant of arrest, basing the verdict on the finding as to that fact, and omitting all reference to his participation otherwise in the prosecution. As the second prayer of this defendant, as amended (there appearing on the record no objection or exception to the amendment), submitted the omitted fact to the jury, it was a concession that there was evidence as to that fact.

His fourth prayer was properly refused because it is argumentive and discussess the law in general without submitting specific facts to be found by the jury. This leaves for consideration the demurrer prayers above referred to.

These prayers are based on the contention of appellants that there was no evidence legally sufficient to show want of probable cause for the prosecution.

In suits for malicious prosecution, the burden is upon the plaintiff to prove that the prosecution complained of was instigated by the defendant without probable cause and that it terminated in an acquittal, dismissal or abandonment. Malice is also a necessary element but, when not negatived, it may be inferred by the jury from the absence of probable cause, though no express malice be shown.

Where probable cause is shown, no suit will lie for malicious prosecution, whatever the actual motive for the prosecution may appear to have been.

Probable cause, as defined in a number of cases, is: "Such reasonable ground of suspicion supported by circumstances sufficiently strong in themselves as to warrant a cautious man in believing the party accused to be guilty."

Whether the evidence in any given case is legally sufficient to show want of probable cause is a question of law; or, as said inThelin v. Dorsey, 59 Md. 545, "what will amount to the want of probable cause, in any case, is a question of law for the court." See Jordan v. The James Holstrom Piano Co., 140 Md. 207, and cases there cited.

The testimony on behalf of the plaintiff tends to prove that in February, 1921, she was living with her father, George G. Rau, and her brother, George D. Rau, Jr., 2130 Walbrook Avenue, and was keeping house for her father; that her brother owned the dog of whose barking complaint was made; that the license was issued in the name of George G. Rau, 2130 Walbrook Avenue; that the dog had been there for about four years prior to February, 1921, and no complaint was made of him until the early part of that year; that in September, 1920, plaintiff complained to the defendant, Mrs. Nettie Goldstein, that her daughter was entertaining "her fellows" on plaintiff's front steps, "and it made her angry, and then that following week she made the remark she was going to see that I got rid of the `D' dog"; that Mrs. Goldstein called plaintiff a "skinny old maid" and her father "an old codger"; that after that, some time in January, 1921, "they started a dispute about the dog, and then February they had me arrested on account of the dog"; that the dog was a pet of the family; that it did not bark more than dogs ordinarily do; that plaintiff was arrested and taken to the police station; that both of the defendants were at the police station, but she prayed a jury trial and the case was sent to the Criminal Court of Baltimore City, where she was tried by a jury and acquitted.

Officer John D. Schmidt, testifying for plaintiff, said: "That 6.10 P.M. Julia Rau was charged with violating Article 138, disturbing a certain neighborhood in Baltimore City, State of Maryland, on or about February 23, 1921; under the proper headings the following appeared; name and address, Julia Rau, 2130 Walbrook Avenue; sex, female; age, 29; occupation, house keeper; single; complainant's name, Cora Berryman, 2136 Walbrook Avenue; witnesses' names and addresses, Oscar Cecil, Nettie Goldstein, Carrie Goldman; disposition, jury trial prayed, released on bail for court."

This officer further testified, on cross-examination, that two complaints were made to him, one by Oscar Cecil and one by a Mr. Byers Ridgewood; that Cecil asked him for information as to what he could do with reference to the dog annoying the neighborhood. "I said I would take the matter up at once and see what I could do. I went then to see Miss Rau and she said she would comply with my request and try to keep the dog quiet"; that this was about ten days before the arrest; that when he told her that Mr. Cecil was complaining about the dog she said, "Well, I don't see where the dog barks so much"; she said, "They are all complaining in the neighborhood"; that Mrs. Goldstein never made any complaint to her with reference to the dog.

R. Bayly Chapman, testifying for plaintiff, said that he was at the time of the arrest a police magistrate at the Northwestern Police Station; that he issued the warrant for the arrest of plaintiff on February 24th, 1921; that the warrant showed that the complainants were Cora Berryman, Oscar Cecil, Nettie Goldstein and Carrie Goldman. On cross-examination the witness said that he could not say from personal recollection that Cecil was there, but would say from the warrant that he was there, and made complaint and asked for a warrant.

The testimony offered on behalf of defendants tends to show that the dog was a nuisance to the neighborhood; that the plaintiff not only did not try to stop the dog from barking, but that she encouraged him to do so; that she said to a number of witnesses, including the defendant, Nettie Goldstein, "My dog don't have to stop barking, he can bark as much as he pleases"; that to one witness who had a baby, and asked plaintiff if she didn't pity the child, she replied, "No, I don't stop my dog for any darn Jew"; that to Joseph Goldstein, husband of one of the defendants, plaintiff said, "My dogs" — it appears there were two for awhile — "don't have to stop barking for you or anybody else, they have licenses and they can bark all they want"; that on one occasion when this witness "hollered" at the dogs, plaintiff's father said, "I wish you would leave them dogs alone, these dogs have license to bark and will bark all they want." Neither the plaintiff nor her father deny that they made the remarks attributed to them.

The testimony is conflicting as to what part the defendants took in the prosecution.

It is urged by appellee that she discharged her burden of proving want of probable cause when she proved that the offending dog did not belong to her, and that this fact would have been disclosed to appellants if they had taken ordinary precaution to look up the license records. On the other hand appellants contend that they were justified in relying upon the representations of ownership made by plaintiff herself in referring to the dog as "my dog."

But that is such a common expression when used in reference to a household pet by any member of a family (especially the one who feeds and takes care of it) in speaking to a stranger, that it should not have been taken as conclusive without further inquiry, by one about to take such a serious step as instigating a criminal prosecution.

"Even if there were circumstances of suspicion in the mind of the defendant which might have been readily removed or explained by reasonable or proper inquiry, and there was no inquiry made, such circumstances cannot be made the ground for showing the existence of probable cause." Johns v. Marsh, 52 Md. 336.

This case was twice tried, and in each instance was permitted by the trial judge to go to the jury.

As presented by the present record, the question is not entirely free from doubt. We therefore feel constrained to affirm the ruling of the trial court refusing to withdraw the case from the jury.

Judgment affirmed, with costs to appellee.