
    No. 488
    GOEBEL et v. HUMMEL
    No. 19792.
    Supreme Court
    On motion to certify.
    Dock. Apr. 27, 1926.
    745. MALICIOUS PROSECUTION — In a suit for malicious prosecution what is the duty of the trial court in instructing the jury on want of probable cause, malice and exemplary damages ?
   Joseph G. Hummel Jr., brought this action originally in Hamilton Common Pleas against Justus Goebel Jr., and Howard I. Hooker for damages arising out of alleged malicious prosecution. It appears that Hummel was arrested pursuant to a warrant sworn to by Hooker charging the obtaining of money by false pretenses. The basis for the charge was the misrepresentation of certain merchandise. This ease was dismissed on the ground that the doctrine of caveat emptor applied.

The jury returned a verdict for $5000 and subsequent to a remittitur of $2000 rendered judgment for $3000 which judgment was affirmed by the Appeals; The trial court charged the jury concerning want of ■ probable cause, malice and exemplary damages to the following effect:

Attorneys — Dempsey & Dempsey and Bolsinger & Benham for Pltfs; Leonard Freiburg, W. M. Locke and Hoffheimer & Pogue for Defts.; all of Cincinnati.

1. Probable cause was defined in general terms and the question submitted to the jury.

2. That if want of probable cause be shown, the legal inference may be drawn that the prosecution was actuated by malice.

3. That if the jury find malice without differentiating between express and implied malice they may award exemplary damages.

The plaintiffs-in-error here contend:

1. That the court should have applied the law to the facts offered in evidence in regard to the origina lprosecution and tell the jury whether such facts if found by them to exist do or do not constitute probable cause for the prosecution.

2. That the instruction concerning malice was a quotation from a written opinion in 102 OS. 153 and should not have been given without qqualification.

3. That express and implied malice should have been differentiated in the charge so as to effect the award of exemplary damages.  