Estes v. Hancock County Bank , 259 Ind. 542 ( 1972 )

On Petition to Transfer

Arterburn, C.J.

This case is before the Court on petition to transfer [Rule AP. 11 (B)] filed by petitioner-co-defendant below, Hancock County Bank (hereinafter referred to as petitioner or bank). The issue raised by the petition is whether a verdict exonerating an agent-employee can sustain judgment in favor of the principal if the principal’s liability is based exclusively upon the conduct of such employee, the sole agent involved in the questioned activities.

The facts giving rise to this petition and the proceedings below may be summarized as follows. Plaintiff-respondent, Balk Estes, was arrested on two charges of “Deceptive Issuance or Delivery Of A Check (not theft).” The warrant for his arrest was secured through an affidavit which was signed and executed by co-defendant Blue, President of the Bank. It was subsequently determined that Estes had neither issued nor delivered the checks in question and the criminal charges were dropped.

The identity of the maker of the worthless checks remains a mystery; however, there was testimony which tended to indicate that another party—referring to herself as Estes’ former wife—had procured certain blank checks which had been issued to plaintiff by an Amarillo, Texas, bank; made them payable to cash; forged Estes’ signature; and, presented them to the Hancock County Bank for payment. The Amarillo account had been closed for some time when the checks were made and delivered.

After the criminal charges against him were dismissed, plaintiff-Balk Estes brought suit against the bank president and the Hancock County Bank for malicious prosecution. The prayer was for $100,000 damages. The liability of the bank was predicated solely upon the acts of the bank president, its agent employee. There were no allegations of concurrent or joint negligence or malice; nor was it claimed that the bank was culpable through its own acts or omissions.

The jury returned a verdict against the bank in the sum of $20,000 but exonerated the bank president. Both plaintiff and co-defendant bank then moved for judgment on the evidence. A motion made by both parties for judgment on the evidence in a jury trial takes the case from the jury and amounts to a joint submission of the case to the court on the evidence. Rule TR 50 provides, in effect, the same thing as a motion for a directed verdict. 2 WILTROUT, INDIANA PRACTICE §1552 (4), (1967), states:

“Ifj either at the end of the plaintiff’s evidence or at the end of all the evidence, both parties ask for a directed verdict, the effect is the withdrawal of the case from the jury and its submission to the court for determination. . . . If the submission is withdrawn, the evidence is to be considered by the court the same as if the. case had been tried without a jury.”

The record shows the trial court granted the bank’s motion for judgment on the evidence and entered judgment accordingly while denying appellant’s motion for judgment on the evidence. The record of the court in its findings of fact and conclusions of law shows that the court agreed with the jury’s verdict in favor of the bank president Blue, and, on that basis, found the verdict of the jury against the bank to be inconsistent therewith. Therefore, the question here presented is, in a malicious prosecution action, is the existence of malice in the agent of the bank a necessary element to recovery against the bank under the facts of this case. The existence of malice is to be determined by the trier of fact. Stivers v. Old Nat’l Bank in Evansville (1970), 148 Ind. App. 196 264 N. E. 2d 339, 342; reh. den.; Pontius v. Kimble (1914), 56 Ind. App. 144, 104 N. E. 981; Lawrence v. Leathers (1903), 31 Ind. App. 414, 68 N. E. 179. On appeal this court will not weigh the evidence but will examine the record .to determine if there is any evidence or legal inference which will sustain the verdict or finding. Phar-Crest Land Corp. v. Therber (1969), 251 Ind. 674, 678, 244 N. E. 2d 644, 646; Kirkum v. Kasprzak (1961), 242 Ind. 198, 177 N. E. 2d 459; Southport Board of Zoning Appeals v. Southside Ready Mix Concrete, Inc. (1961), 242 Ind. 133, 176 N. E. 2d 112, reh. den.; Anderson v. Kinser (1961), 241 Ind. 555, 173 N. E. 2d 914.

In this case, the uncontradicted evidence shows that the bank president consulted the bank’s attorney and the local prosecutor prior to the execution of the charging affidavits. The fact that the bank president sought such advice would be a proper factor for the fact-finder to consider as tending to rebut the existence of malice. Atkinson v. VanCleave (1900), 25 Ind. App. 508, 57 N. E. 731; See also Indianapolis Traction and Terminal Company v. Henby (1912), 178 Ind. 239, 97 N. E. 313; reh. den.; The Terre Haute and Indianapolis R. R. Co. v. Mason (1897), 148 Ind. 578, 46 N. E. 332; Henderson v. McGruder (1912), 49 Ind. App. 682, 98 N. E. 137; Lytton v. Baird (1884), 95 Ind. 349. For this reason, or upon the record as a whole, there is sufficient evidence to support the conclusion that the bank president acted without malice.

This brings us to the central question of the petition; whether the bank should be held for the acts of its exonerated president where the liability of the bank was predicated solely on his conduct. We answer this issue in the negative by holding that a proper verdict in favor of the employee, whether announced by the jury or determined by the trial court, Rule TR. 50, requires a judgment in favor of the employer where the liability of the employer is grounded solely upon the activities of the employee. Barrett v. Schmidt (1963), 134 Ind. App. 456, 189 N. E. 2d 587; Holbrook v. Nolan (1938), 105 Ind. App. 75, 10 N. E. 2d 744, trans. den., 53 Am. Jur. 2d Master and Servant § 406 (1970); See City of Anderson v. Fleming (1903), 160 Ind. 597, 67 N. E. 2d 443, 66 L. R. A. 119. Had the parties not submitted this case for judgment on the evidence, Rule TR. 50, we would have been entitled to overcome the jury’s anomalous verdict by granting a new trial. See United Transportation Co. v. Jefferies (1937), 211 Ind. 226, 5 N. E. 2 524, reh. den.; Childress v. Lake Erie and Western R. R. Co. (1914), 182 Ind. 251, 105 N. E. 2d 467, reh. den. Since neither party sought a new trial, but asked instead for a final determination by the trial judge, our review is limited to a consideration of the judgment entered. After reviewing the record of the proceedings below, we cannot find that the entry of the judgment in favor of the bank constituted error.

In announcing this result, it should be pointed out that our holding does not disturb or limit the effect of the rule which states that “the verdict in favor of a joined defendant [does not] bar a recovery against the master where the latter has himself been guilty of acts on which, independently of the acts of the servant, liability may be predicated.” Interstate Motor Freight System v. Henry (1942), 111 Ind. App. 179, 188, 38 N. E. 2d 909, 912; See also New York Central R. R. Co. v. Verpleatse (1945), 116 Ind. App. 1, 9, 59 N. E. 2d 916, 919, reh. den., 60 N. E. 2d 784; Holbrook v. Nolan (1937), 105 Ind. App. 75, 10 N. E. 2d 744, reh. den., trans. den.; Lake Erie & Western R. R. Co. v. Reed (1913), 57 Ind. App. 65, 103 N. E. 127, reh. den., trans. den.

Similarly, a finding in favor of one employee does not necessarily bar a recovery against the principal, “where the evidence shows that the negligence of another servant who is not joined as a party, or who if joined as a party is not exonerated by the verdict, has caused the injury.” Interstate Motor Freight System v. Henry (1942), 111 Ind. App. 179, 188, 38 N. E. 2d 909, 912. In this case, however, the complaint contains no allegations of negligence or malice on the part of any individual or entity other than the bank president. See New York Central R. R. Co. v. Verpleatse (1945), 116 Ind. App. 1, 9, 59 N. E. 2d 916, 919, reh den., 60 N. E. 2d 784, The evidence produced by the plaintiff was directed solely at proving malicious prosecution on the part of co-defendant Blue. The rules and the procedures of the bank were not questioned and no assertions were made concerning the conduct of other employees. The bank being a corporation, its mental state or condition as to the existence of malice was dependent upon that of some agent or employee of the bank. Since the bank was joined solely upon the ground of vicarious liability and no primary liability was established in any agent, the verdict was, therefore, “inconsistent and illogical” and the court’s resulting finding and judgment was proper. Barrett v. Schmidt (1963), 134 Ind. App. 456, 457, 189 N. E. 2d 587, 588, 53 Am. Jur. 2d Master and Servant § 406 (1970). Accordingly, petition to transfer is granted, thus reinstating the judgment of the trial court.

Givan and Prentice, JJ., concur; DeBruler, J., dissents with opinion in which Hunter, J., concurs.