by the plaintiff, she was not acting within the scope of her authority, or in the course of her employment as a servant of the defendant corporation. She was acting in her own behalf, concerning a personal assault upon her at her residence, at a time when she was not in the performance of any duties as a servant of the defendant corporation.
When the witnesses, Mrs. Schaeffer, Mrs. Ball and Mr. Brewer, appeared to testify upon the assault charge, they told the District Attorney what they knew about the case. Because Mrs. Schaeffer could not positively identify the plaintiff as the man who made the assault upon her, the District Attorney nol-prossed the case for assault, and advised Mrs. Schaeffer to enter prosecution for threats, which was done upon her oath. Mrs. Schaeffer and J. W. Brewer testified as witnesses for the prosecution in the threats case.
Mere passive knowledge, or acquiescence or consent in the acts of another person, is not sufficient to impose liability for malicious prosecution. There must be some affirmative action that the defendant instituted or caused the prosecution to be instituted. No liability attaches solely by reason of testifying as a witness for the prosecution, or by reason of the fact that one's name is indorsed as a witness on an indictment or information. There is no testimony in this case to prove that any servant or agent of the defendant corporation, acting within the scope of his or her authority, or in the course of his or her employment, instituted, or caused to be instituted, or advised, counseled or encouraged, or was instrumental in any way in instituting the prosecutions in this case.
For the foregoing reasons, it is my opinion that the plaintiff has failed to prove that the defendant corporation instituted, or caused to be instituted, the prosecutions for assault, or for threats.
I directed a verdict for the defendant upon the further ground that the plaintiff failed to prove that there was no probable cause for the prosecutions.
Want of reasonable and probable cause is as much an element in the action for a malicious criminal prosecution as the evil motive which prompts the prosecutor to make the accusation; and though the averment is a negative one in its form and character, it is nevertheless a material and essential element of the action, and must be proved by the plaintiff by some affirmative evidence. Wheeler v. Nesbitt, supra.
If there was probable cause for the prosecution, an action will not lie, although the party who procured the indictment was actuated by malice. The want of probable cause for the prosecution cannot be inferred from established malice. Dinsman v. Wilkes, 12 How. 390, 53 U.S. 390, 13 L. Ed. 1036; Spitzer v. Friedlander, 14 App.D.C. 556; Chapman v. Anderson, supra.
Probable cause has been defined to be: A reasonable cause to believe that the plaintiff was guilty, based on facts and circumstances sufficient in themselves to induce such belief in an ordinary person. Spitzer v. Friedlander, supra; Mark v. Rich, 43 App.D.C. 182; Mt. Vernon & Marshall Hall Steamboat Co. v. McKenney, 46 App.D.C. 99, certiorari denied 243 U.S. 655, 37 S. Ct. 480, 61 L. Ed. 948; Ambs v. Atchison, T. & S.F.R. Co., C.C. Mo., 114 F. 317; a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the party is guilty of the offense with which he is charged; or such a state of facts as would lead a man of ordinary caution to believe, or to entertain an honest or strong suspicion that the person is guilty. Stacey v. Emery, 97 U.S. 642, at page 645, 24 L. Ed. 1035; the existence of such facts and circumstances as would excite the belief in a reasonable mind, acting on the facts within the knowledge of the prosecutor, that the person charged was guilty of the crime for which he was prosecuted. Wheeler v. Nesbitt, supra.
If the existence of facts from which probable cause, or want thereof, is to be determined, is in dispute, or depends upon conflicting testimony, the question is one for the jury, under instructions by the court stating such facts embraced within the record as would constitute probable cause, but if the facts upon the question of probable cause are undisputed or clearly established, the question of probable cause becomes a question of law for the court. Sanders v. Palmer, 2 Cir., 55 F. 217, 220; Crescent City Live Stock Co. v. Butchers' Union, 120 U.S. 141, at page 149, 7 S. Ct. 472, 30 L. Ed. 614; Stewart v. Sonneborn, 98 U.S. 187, at page 194, 25 L. Ed. 116; Chapman v. Anderson, supra.
Probable cause for a prosecution exists when all the material facts upon the question of probable cause are made known at the time to the prosecuting attorney, and upon them he advises and institutes the prosecution. Mark v. Rich, supra; Chapman v. Anderson, supra. Upon this question it was said by the Court of Appeals of the District of Columbia, in Chapman v. Anderson, supra (55 App.D.C. 165, 3 F.2d 340), 'In most instances the courts have held, in malicious prosecution actions brought upon criminal prosecutions, that where the prosecutor stated all the material facts to the attorney charged with the responsibility of determining criminal liability, and he is by the attorney advised to prosecute, that probable cause exists, and the action from (for) malicious prosecution cannot be maintained. The welfare of law-abiding people would receive a severe blow, if it were to become established law that one must be the insurer of the successful outcome of criminal charges preferred.'
All the material facts upon the question of probable cause in the prosecution for threats were made known at the time to the prosecuting attorney, and upon them he advised the prosecution for threats, and entered an information accordingly.
All the material facts upon the question of probable cause for both prosecutions have been proved by evidence in behalf of the plaintiff. They are clearly established and undisputed, and the only reasonable inference that can be drawn from them is that there was probable cause for the prosecutions of the plaintiff. National Surety Co. v. Page, 4 Cir., 58 F.2d 145. Mrs. Schaeffer, as well as J. W. Brewer, had strong reason to believe that the plaintiff was the man who committed the assault, and they knew that he was the man who made the threats, for which he was prosecuted. The man who made the assault said in a guttural tone of voice like that of the plaintiff, 'I told you I would get you'. The assault came shortly after the threats, and there was no evidence that any other person had made threats against Mrs. Schaeffer, or that any other person had any grievance against her. The facts and circumstances, proved by the plaintiff in the trial of this case, are sufficient in themselves to lead a man of ordinary caution to believe that the plaintiff was guilty of the assault, as well as the threats, for which he was indicted.
For the reasons herein stated, I directed a verdict for the defendant; and, for the same reasons, I now overrule the motion for a new trial.
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