Thomas C. McCarthy, Respondent, v. Levi C. Weir, as President of the Adams Express Company, Appellant

Thomas C. McCarthy, Respondent, v. Levi C. Weir, as President of the Adams Express Company, Appellant. Second Department, June 8, 1906. Malicious prosecution—malice always question for jury—no malice as matter of law because of want of probable cause — erroneous charge. . In an action for malicious prosecution the malice of the defendant is always a question exclusively for the jury.' . Hence, it is error to charge that when a criminal prosecution has terminated favorably to the person proceeded against there is an “implication of malice arising as matter of law.” , Appeal by the defendant, Levi C. Weir, as president of the Adatns Express Company, from a judgment of the Supreme Court in-favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 27th day off June, 1905, upon the verdict. - of a jury, and &lso from an order entered in said clerk’s, office on the •12th day of June, 1905, denying the defendant’s motion for a new trial-made upon, the minutes. Richard Reid Rogers [C. A. de Gersdorff with him on brief], for the appellant. Frank Moss [Clark B. Augustine with him on the brief], for the respondent. [MAJORITY — Jenks, J.:] Jenks, J.: The action is. for -false 'imprisonment and malicious prosecution upon a criminal charge of grand larceny. J At the close of the plain? tiff’s case the court, dismissed his cause of action for false, imprison- ' ment, but finally submitted that for malicious prosecution to the jury, who found for the plaintiff. The learned trial court cjiarged the jury, “ The basis of an action of this-kind is malice,”-and after defining malice, it continued: “The law says that "where-a prosecution such as. this has been initiated -by a citizen-and it termipates favorably to the person proceeded against, it may be presumed that the prosecuting .citizen had not probable cause to believe that such-defendant was guilty of the offense, and it will 'imply malice. So that the cause is ordinarily made out. when there has been a termination of the criminal prosecution favorable to the defendant, the implication-of malice arising ásmaÚer oflawA 'The learned court afterwards‘explained and qualified its charge relative to probable.cause, but although the charge as to malice was specifically -presented to 'its attention. I cannot find that, it'receded from the instruction that "the law implies malice from the want, of probable cause. The defendant protected himself by his exceptions,. • " I think that the judgment must be reversed for this error, .inasmuch as the jury virtually were instructed that if it found- want of probable cause, malice followed on its heel by implication of law. The law does not imply malice from a want of probable cause. It may be inferred therefrom by the jury. ( Vanderbilt v. Mathis, 5 Duer, 304 ; Wilder v. Holden, 24 Pick. 8 ; Stewart v. Sonneborn, 98 U. S. 193 ; 2 Greenl. on Ev. [15th ed.] § 453, and authorities cited.) In Stewart v. Sonneborn (supra) the court, per Strong, J., say: “ And the existence of malice 'is always a question exclusively for the jury. It must be found by them, or the action cannot be sustained. Hence it must always be submitted- to them to find whether it existed. The court has no right to find it, nor to instruct the jury that they may return a verdict for the plaintiff without it. Even the inference of malice from the want of- probable cause is one which the jury alo necean draw. (Wheeler v. Nesbit et al., 24 How. 545 ; Newell v. Downs, 8 Blackf. [Ind.] 523 ; Johnson v. Chambers, 10 Ired. [N. C.] L. 287 ; Voorhees v. Leonard, 1 N. Y. Sup. Ct. 148† ; Schofield v. Ferrers, 47 Pa. St. 194.)” The judgment and order are reversed, and a new trial is granted, with costs to abide the event. Hooker, Gaynor, Rich and Miller, JJ., concurred. Judgment and ordey reversed and new trial granted, costs to abide the event. 24 How. [U. S.] 545.— [Rep. † Van Voorhes v. Leonard, 1 T. & C. 148.— [Rep.