Opinion · Ohlaw Ohio

PICKLE v. SWINEHART, 170 Ohio St. 441 (1960)

PICKLE, APPELLEE v. SWINEHART, APPELLANT., 166 N.E.2d 227 (Ohio 1960)

Type: Opinion
Court: Ohlaw Ohio
Jurisdiction: Ohlaw
Date: 1960-03-30
Topic: general

PICKLE v. SWINEHART, 170 Ohio St. 441 (1960) 166 N.E.2d 227 PICKLE, APPELLEE v. SWINEHART, APPELLANT. No. 36104Supreme Court of Ohio. Decided March 30, 1960.

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PICKLE v. SWINEHART,170 Ohio St. 441(1960)

166 N.E.2d 227

PICKLE, APPELLEE v. SWINEHART, APPELLANT.

No. 36104

Supreme Court of Ohio.

Decided March 30, 1960.

Malicious prosecution — Punitive damages — Actual malice anessential element — Charge to jury — Request to charge on legalmalice — Failure to charge on actual malice not error, when —Terms "legal malice" and "actual malice" not synonymous.

1. The terms "legal malice" and "actual malice" are not synonymous.

2. In an action for malicious prosecution a request for a trial judge to charge the jury with respect to legal malice is not a request for a charge on actual malice, which is an element essential to the allowance of punitive damages. (Paragraph one of the syllabus ofDavisv.Tunison,168 Ohio St. 471, approved and followed.)

3. When a trial judge is requested to charge a jury on legal malice, a failure to charge on actual malice is not error.

APPEAL from the Court of Appeals for Summit County.

In the Court of Common Pleas the plaintiff recovered a verdict and judgment for $300 against the defendant appellant for the alleged malicious prosecution of a charge of stealing certain personal property, namely, several stones which had been part of the foundation of a house recently moved to another location.

From the judgment of the Court of Common Pleas the plaintiff perfected an appeal to the Court of Appeals on questions of law, claiming, as one of his assignments of error, that the amount of the verdict and judgment is inadequate. The reviewing court found no prejudicial error except that "the trial court erred in charging the jury on the question of punitive damages by charging that punitive damages may be awarded only on proof of actual malice and that actual malice `means a feeling of hatred, ill will or revengefulness' when in law actual malice may also be `inferred from conduct and surrounding circumstances, such as malicious prosecution of one wantonly, recklessly, and without justification.'" (But seeRogersv.Barbera, ante, 241, 245.) The judgment of the Court of Common Pleas was reversed, and the cause was remanded to that court for further proceeding.

The cause is in this court for a review by reason of the allowance of the defendant's motion to certify the record.Page 442

Messrs. Myers, Myers Myers, for appellee.Messrs. Felver Hartnett, for appellant.

WEYGANDT, C.J.

In the opinion of the Court of Appeals appears the following statement:

"We have examined all of the claimed errors, and find none prejudicial to the substantial rights of the appellant except the instruction by the trial judge on the subject of punitive damages and the definition of actual malice.

"Counsel for the appellant, Mr. Pickle, took exception to the instruction given, and read into the record that he had requested the trial judge to further instruct the jury that `legal malice was, or is, a basis for punitive damages.' This request, we believe, was broad enough to require the trial judge to further instruct on the question presented in the request."

When counsel for the plaintiff requested the trial judge "to charge that legal malice was, or is, a basis for punitive damages," was this a request by mere implication that the court should charge the jury on the additional subject ofactualmalice? The Court of Appeals answered this question in the affirmative and held that the trial judge was guilty of prejudicial error in not so charging.

With this conclusion of the Court of Appeals this court finds that it can not agree.

Are the terms "legal malice" and "actual malice" synonymous?

Not according to the authorities. In 34 American Jurisprudence, 683, Section 3, it is said, "Legal malice is a presumption of law, and is sometimes called malice in law, in contradistinction to malice in fact * * *." And in 54 Corpus Juris Secundum, 912, it is explained that "in one sense it is used to indicate malice which exists as a matter of fact, that is, malice in the common acceptation of the word which is ill will against a person * * *. This classification is commonly referred to as malice in fact, actual malice, or express malice. * * *

"In a different sense the word is employed to indicate malice which exists as a matter of law; the legal meaning of the term which indicates a wrongful act done intentionally and without just cause or excuse * * *. For the purpose of distinguishingPage 443the legal meaning from the meaning the word has in ordinary acceptation, this classification usually is referred to as malice in law, and frequently by terms which are equivalent or synonymous, such as `implied malice' or `legal malice,' and less frequently by other terms such as `imputed malice,' `presumed malice,' or `malice of pleading and proof.'" Likewise in 35 Ohio Jurisprudence (2d), 142, Section 22, appears the summary that, "while malice, in common acceptance, means ill will and hatred, yet so far as the law is concerned, malice may be classified as actual or express malice, on the one hand, and 'legal' or implied malice, on the other * * *. Actual or express malice has been defined as that state of mind under which a person's conduct is characterized by hatred or ill will, a spirit of revenge, retaliation, or a determination to vent his feelings upon other persons. Legal or implied malice, on the other hand, is that which the law infers from or imputes to certain acts, and has been defined as that state of mind under which a person does a wrongful act purposely, without a reasonable or lawful excuse, to the injury of another."

Hence, it is clear that a request for simply a charge on legal malice is by no means a request for a charge on actual malice. The plaintiff made no request for a charge on actual malice, an element which this court has held to be essential to the allowance of punitive damages (seeDavisv.Tunison,168 Ohio St. 471,155 N.E.2d 904), and the Court of Appeals was in error in reversing the trial court for not so charging. The judgment of the Court of Appeals is reversed and that of the Court of Common Pleas is affirmed.Judgment reversed.

ZIMMERMAN, TAFT, MATTHIAS, BELL, HERBERT and PECK, JJ., concur.Page 444