Fry v. Wolf

Citations

• 8 Pa. Super. 468
• 1898 Pa. Super. LEXIS 79

Syllabus

<p>Malicious prosecution — Proof of malice and probable cause essential.</p> <p>Malice and want of probable cause must be proved in order to entitle a plaintiff to recover damages for a malicious prosecution. These are essential and must coexist.</p> <p>Evidence — Want of probable cause, when inferred — Burden of proof.</p> <p>The lawful discharge of the defendant in the prosecution by the examining magistrate, is prima facie evidence of want of probable cause, and the burden of proof that there was probable cause, as a general rule, is then cast upon the defendant in the action.</p> <p>Evidence — Test of probable cause — Reasonable belief.</p> <p>The question whether or not there was probable cause does not depend on the actual state of the case in point of fact. The test is the prosecutor’s belief of its existence, based, however, upon reasonable grounds.</p> <p>Malicious prosecution — Theoretical malice — Inference of fact — Question for jury.</p> <p>Something more than theoretical malice is requisite to sustain an action for malicious prosecution ; it must be proved as a fact, and while it may be inferred from want of probable cause its existence is for the jury.</p> <p>Malicious prosecution — Evidence—Rebuttal of inference of malice— Gharge of court.</p> <p>When there is evidence which, if believed, would rebut the inference of malice it is error to tell the jury that if there was not probable cause they must find for the plaintiff and that the defendant must show such conduct on the part of the accused as would warrant an ordinarily prudent man in believing that accused was guilty of the offense charged. The defendant may fail to show such conduct on the part of the plaintiff and he may show that he acted in good faith under advice of counsel.</p>