Pessagno v. Keyes

Offutt, J., delivered the opinion of the Court. The only exception, presented by the record in this case relates to the rulings of the trial court on the prayers. The facts are simple and few and may be briefly stated: On the night of December 8th, 1920, Lawrence J. Keyes, then employed as a cab driver by the Yellow Taxicab Company, received a call to go to the Ensor Cafe, 601 Ensor Street, Baltimore. "When he arrived there in answer to the call he was met by Ethel Blum, who requested him to go to Micklleburg, íxear Middle River iix Baltimore County. As they were going there they found an automobile belonging to the appellant, Anthony Pessagno, “ditched.” Pessagno1 lived *439 in Baltimore Oity and. had. an interest in the Ensor Cafe, and also owned a, number of “shoresi,” waterfront lots improved by dwelling’s, near Middle itiver, which he rented. On the occasion referred to above he w'as returning from a visit to these shores where he had gone to collect the rents when he drove his car into a ditch. He then tried to ask his wife over the telephone to come down for him in a cab. He was not able to reach his wife and the message was received by a Miss Blum who was formerly employed hy Mm aud knew him very well. When she received the message .she said, “'Maybe Tony is hurt, I will go, T will get a taxi and go down myself.” She then called for a taxi and when Keyes came in response to the call she went with him to Pessagno. When they reached Pessagno’s car he told them to go to Bennett’s shore about a mile away and wait for him. He joined them there later and there they remained for several hours. Keyes then .at Pessagno’s order drove them to the Ensor Cafe. Keyes was on the front seat and Pessagno and Miss Blum were on the rear seat. When they reached there. Pessagno gave Keyes a tom ten dollar bill and a five dollar bill in payment of the cab fare. A few minutes later he cried out, “I have been rolled for1 five hundred dollars. Hold this man and woman.” A policeman was then sent, for and when he came P’essagno demanded that Keyes and the woman be searched. The policeman refused to search them there hut took them to the Northwestern Police Station where Pessagno laid a charge of larceny against them. They were then searched and no money of the defendant was found on either of them; except the money he had paid Keyes, for the hire of the cab. Keyes was’ then locked up iu a cell for the night. The next morning Pessagno came to the station house and told the police magistrate “it was. all a mistake', that he had been drinking, and he did not want to prosecute anybody.” Keyes was thereupon discharged. Pessagno in the course of his testimony said he never had accused either Keyes or Miss Blum of taking Ms money, *440 that he knew the girl was honest and that Keyes could not have taken it because he was not on the seat with him. He denied that he had ever charged Keyes with the theft or prosecuted him. After his release Keyes, through his attorney, demanded that Pessagjm compensate him for the injury done him as a result of the charge brought against him by Pessagno and, upon his refusal to.comply with that demand, Keyes brought this action in the Baltimore City Court. The trial resulted in a verdict for the plaintiff from which the defendant has. appealed. At the conclusion of the testimony in the trial below the plaintiff offered two prayers which were granted and the defendant five, of which two were refused and the others granted. In dealing with these prayers we will treat the facts to which we have referred as established. It is. true the defendant denies many of them, hut since we are passing upon a demurrer to the evidence we must disregard that conflict and accept as: true any relevant and material evidence! found in the record which supports the plaintiff’s claim, and we have so dealt with it in stating the facts, of this case. The plaintiff’s first and second prayers are free from objection and were properly granted. The defendant’s contention is that he was prejudiced by that part of the plaintiff’s first prayer by which the jury were instructed “that, if they shall find from the evidence that the plaintiff was arrested, tried and .acquitted in the Northeastern Police Station of Baltimore City on the charge set forth in the record of that court, and the docket entries read in evidence, and shall find that the defendant aided and assisted in procuring or directed the arrest and prosecution of the plaintiff under such circumstances as would not have induced a reasonable and dispassionate man to have undertaken such prosecution from public motives, then there was no! probable cause for said prosecution, and the jury may infer, in the absence of sufficient proof to satisfy them to the contrary, that such prosecution *441 was malicious in law, and their verdict, may he for the plaintiff.” That prayer in substance was approved in Cecil v. Clarke, 17 Md. 524, and in the later case of Torsch v. Dell, 88 Md. 468, and so far as wo know it has never heen questioned as a clear and correct statement of the law. Certainly there is nothing in the cases of Boyd v. Cross, 35 Md. 196, or Medcalfe v. Brooklyn Ins. Co., 45 Md. 198, which, in any way qualifies or weakens the authority of Cecil v. Clarke, supra, to which they both, refer with approval. The defendant’s first prayer is, based upon the theory that there is no evidence in the case legally sufficient to entitle the plaintiff to recover. Considering; only the evidence supporting the plaintiff’s claim, the prayer admits that the defendant caused and procured the arrest and imprisonment of the plaintiff on a charge which he, the defendant, knew to be false when he made it and that the charge was abandoned and the plaintiff released and discharged therefrom, and that when, he made the charge the defendant knew the plaintiff was not and could not have been guilty of the crime charged. Admitting so much, he necessarily admits the plaintiff’s right to recover. Dorsey v. Winter, April Term, 1923; Jordan v. Piano Company, 140 Md. 207; Boyd v. Cross, 35 Md. 196. The elements essential to the successful prosecution of such an action as this may be thus stated: “(1) The commencement or continuance of an original criminal or civil judicial proceeding: (2) its legal causation by the present defendant against, plaintiff who was defendant in the original proceeding; (3) its bona. fide termination in favor of the present plaintiff: (4) the absence of proba,ble canse for such, proceeding; (5) the presence of malice therein;(6) damage conforming to legal standards] resulting to plaintiff.” 26 Cyc. 8. All of these elements are found in the facts stated above, and in our opinion the defendant’s first prayer was property refused. *442 By the defendant’s third prayer the plaintiff’s right to recover was made to depend upon the hypothesis that when he caused, the plaintiff’s arrest he, Pessagno, believed that ha had been robbed. But as was said in Johns v. Marsh, 52 Md. 323, “mere belief that cause existed, however sincere that belief may have been, is not sufficient; for, as said by Judge Cooleyone may believe on suspicion and suspect without cause or his belief may proceed from some mental peculiarity of his own; there must be such grounds of belief, founded upon the actual knowledge of facts, as would influence the mind of a reasonable person, and nothing short of this can justify a serious and formal criminal charge against .another.” The proposition submitted by the prayer was therefore untenable and the prayer should have been, as it was, refused. Einding no error in the rulings of the trial court, the judgment appealed from will be affirmed. Judgment affirmed, with costs to the appellele.