While, in an action for malicious prosecution, the burden of
proving malice and want of probable cause is on the plaintiff,
24 How. 544, as the motive and
circumstances are best known to the defendant, plaintiff is only
required to adduce such proof as is affirmatively under his
control, and which he can fairly be expected to be able to
In this case, held
that plaintiff did not produce all
the testimony within her control and did not sustain the burden
even to that extent.
In a suit for malicious prosecution, in the absence of
plaintiff's adducing facts properly expected to be under her
control, the question of probable cause in a clear case is one for
the court and, in this case, was properly taken from the jury.
34 App.D.C. 242 affirmed.
The facts are stated in the opinion.
MR. JUSTICE DAY delivered the opinion of the Court.
The plaintiff in error brought suit in the Supreme Court of the
District of Columbia against the defendant to recover damages for
malicious prosecution. Judgment was entered in favor of the
defendant, and upon appeal to the Court of Appeals of the District
of Columbia, this judgment
Page 224 U. S. 190
was affirmed. 34 App.D.C. 242. The case was then brought to this
Court upon proceedings in error.
The facts as to the prosecution are, in substance, that the
plaintiff, being the keeper of a boarding house in the City of
Washington, on or about the 26th day of December, 1907, and
occupying certain premises known as 717 Eighth Street, Northwest,
and one Mary Levy were named as defendants in a proceeding
commenced by Selfridge in the police court of the District of
Columbia in which he swore out a search warrant for certain of his
property, namely, twelve curtains, of the value of $300, which, he
averred, had, within two hundred days last past, by some person or
persons unknown, been stolen, taken, and carried away out of his
possession, and which he had probable cause to suspect, and did
suspect, were concealed in the premises of plaintiff and Mary Levy,
on Eighth Street; that, under authority of the search warrant,
certain officers, accompanied by the defendant, proceeded to search
the premises, but did not find the goods in question, and that,
upon return of that fact being made, the proceedings against the
plaintiff and Mrs. Levy were nolled,
and the case thus
At the trial of the case in the Supreme Court, the plaintiff
introduced testimony as to the prosecution and the circumstances
under which the search was made, and also testimony tending to show
her good reputation for honesty and integrity, and the injury to
her health and occupation. At the conclusion of the plaintiff's
proof, the court instructed the jury to return a verdict for the
defendant upon the ground that the plaintiff had failed to make a
showing of want of probable cause, and
judgment was entered accordingly.
The question involved therefore is was there sufficient proof of
the want of probable cause to carry the case to the jury?
The testimony shows that, when the defendant and
Page 224 U. S. 191
officers executing the search warrant visited the house of Miss
Brown, the plaintiff, search was made of the premises and also of
the trunks of the plaintiff and of Mrs. Levy, who, it seems, was at
the time stopping with Miss Brown. As we have said, the officers
The charge upon which the search warrant was issued did not
accuse either Miss Brown or Mrs. Levy of stealing or wrongfully
taking the property from the defendant, but stated that such
property was thus appropriated by some person unknown, within two
hundred days before the warrant was sworn out, and the belief of
the defendant was alleged that the property was concealed within
the premises of the persons named.
There was testimony in the record tending to show that Miss
Brown had not taken the property mentioned or other property from
the house of the defendant; that she was in his employ for a number
of years, and was trusted with monetary transactions, and otherwise
treated as worthy of his confidence. The plaintiff testified in her
own behalf, and Mrs. Levy was called as a witness in support of her
The plaintiff did not show that, with her knowledge or consent,
the alleged stolen property was not in her house or upon the
premises within the time named in the search warrant. Mrs. Levy,
evidently not an unwilling witness, did not testify that she had
never taken the goods, or that, so far as she knew, they were never
upon the premises of the plaintiff.
It is settled law that, in an action of this kind, the burden of
proving malice and the want of probable cause is upon the
plaintiff. This has been the recognized law of this Court, and was
distinctly stated in the case of Wheeler v.
24 How. 544, often cited in cases of this
character, where Mr. Justice Clifford, speaking for the Court, said
(p. 65 U. S.
"The plaintiff must show that the defendant acted from
Page 224 U. S. 192
malicious motives in prosecuting him, and that he had no
sufficient reason to believe him to be guilty. If either of these
be wanting, the action must fail, and so are all the authorities,
from a very early period to the present time. Golding v.
Sayer 1; Farmer v. Darling,
4 Burr. 1974; 1
Hilliard, Torts 460."
"It is true, as before remarked, that want of probable cause is
evidence of malice for the consideration of the jury, but the
converse of the proposition cannot be sustained. Nothing will meet
the exigencies of the case, so far as respects the allegation that
probable cause was wanting, except proof of the fact, and the
as was well remarked in the case last
referred to, is upon the plaintiff to prove affirmatively, by
circumstances or otherwise, as he may be able, that the defendant
had no reasonable ground for commencing the prosecution.
Purcell v. MacNamara,
9 East 361; Willans v.
6 Bing. 184; Johnstone v. Sutton,
1 Term 544;
Add. on W. and R. 435; Turner v. Ambler,
10 Q.B. 257."
While it is true that the want of probable cause is required to
be shown by the plaintiff, and the burden of proof is upon her in
this respect, such proof must necessarily be of a negative
character, and concerning facts which are principally within the
knowledge of the defendant. The motives and circumstances which
induced him to enter upon the prosecution are best known to
himself. This being true, the plaintiff could hardly be expected to
furnish full proof upon the matter. She is only required to adduce
such testimony as, in the absence of proof by the defendant to the
contrary, would afford grounds for presuming that the allegation in
this respect is true. 1 Greenleaf on Evidence § 78. In other words,
the plaintiff was only obliged to adduce such proof, by
circumstances or otherwise, as are affirmatively within her
control, and which she might fairly be expected to be able to
produce. As Mr. Justice Clifford put it, in Wheeler v. Nesbitt,
Page 224 U. S. 193
the plaintiff must prove this part of the case "affirmatively,
by circumstances or otherwise, as he may be able."
It is contended by the learned counsel for the plaintiff in
error that Miss Brown produced all the testimony in the case which
she might reasonably be expected to control, and it is pertinently
asked, what more could she prove? We think an inspection of the
record furnishes an answer to the question. With respect to the
search warrant, the charge was not that the plaintiff and Mrs. Levy
stole or wrongfully took the property of the defendant, but the
belief of the defendant was averred that the property had been by
someone thus taken, and was concealed in or about the premises of
the plaintiff and Mrs. Levy. The plaintiff could readily have shown
that, within the time named in the search warrant, so far as she
knew, with the means which she had of information, the property in
question had never been upon her premises. She could have shown by
Mrs. Levy, whom she produced as a witness, that Mrs. Levy did not
take the property from the premises of the defendant, and that the
property was not upon the premises of Miss Brown at any time so far
as her knowledge and opportunity of knowing extended.
Failing to adduce proof of the facts to which we have called
attention, and, in clear cases, the question of probable cause
being one of law, for the court, we think that there was no error
in taking the case from the jury.
Judgment of the District court of appeals is