Spear v. Hiles

Decision Date23 November 1886
Citation30 N.W. 506,67 Wis. 350
PartiesSPEAR v. HILES.
CourtWisconsin Supreme Court
OPINION TEXT STARTS HERE

Appeal from circuit court, Monroe county.

The action is to recover damages for an alleged malicious prosecution. The defendant and his son were the owners of two warehouses in the village of Dexterville, Wood county, in which was stored a quantity of wooden ware. On the night of Saturday, July 7, 1883, these warehouses were set on fire, and, with their contents, were destroyed. On the thirteenth of the same month the defendant made a complaint to a justice of the peace, charging that the plaintiff, his wife, and one George L. Haney set the fire which burned the buildings and contents. A warrant was issued by the justice for the arrest of the accused parties, and they were arrested by a constable, and brought before the justice.

In the mean time the defendant sent to Grand Rapids for the district attorney of the county, who, accompanied by the sheriff, reached Dexterville on the evening of the 13th. The district attorney found the complaint defective, and thereupon dismissed the prosecution then pending, drew another complaint, and instituted another prosecution, against the same parties, for the alleged burning. The constable transferred the custody of the plaintiff to the sheriff, who held him under the warrant issued on the second complaint. The accused parties waived an examination before the justice, and were committed to the jail of Wood county for want of bail. They were detained there for several weeks. They finally procured bail, and were released. An information charging them with the burning was filed against the accused parties by the district attorney, and they were subsequently tried in the circuit court for the crime charged, and were duly acquitted thereof.

This action is to recover damages for such prosecution of the plaintiff, and his consequent imprisonment. It is alleged in the complaint that the prosecution was instituted by the defendant maliciously, and that he had no probable cause to believe the plaintiff guilty of the crime charged. Sufficient mention of the testimony, and the rulings of the court on the trial, will be found in the opinion. The jury found for the plaintiff, and assessed his damages at $5,000. A motion for a new trial was denied, and judgment entered pursuant to the verdict. The defendant appeals from the judgment.Quarles & Spence and John T. Fish, for respondent, Spear.

E. Q. Nye, Morrow & Masters, and H. W. Chynoweth, for appellant, Hiles.

LYON, J.

The case was sharply litigated in the trial court. A large amount of testimony was introduced, and numerous exceptions were taken to the rulings of the court on the trial. Many of the rulings so excepted to are relied upon here as sufficient grounds for reversing the judgment. In this case (as in many other cases in which the exceptions are numerous) the errors assigned may be classified under a few general heads, and be disposed of without the necessity of making a detailed statement of the challenged rulings.

1. We will first consider the instructions relating to probable cause, malice, and damages, and the refusal of the court to give a single instruction asked by the defendant.

First, assuming that the alleged malicious prosecution was commenced by the making of the second complaint, (as the court instructed the jury in a variety of forms,) and that the first complaint, and the proceedings thereon, are of no importance in the action, we think the evidence still leaves the question as to whether the defendant has or has not made good his defense that he acted honestly, under the advice of the district attorney, a proper one for the jury. The jury were instructed as follows: “If the jury believe from all the testimony in the case that the defendant, Mr. Hiles, before the institution of the criminal proceedings in which and by virtue of which this plaintiff, Mr. Spear, was arrested, taken before the justice of the peace, and was committed to jail in default of bail, in good faith made a statement to the district attorney of the facts of which he had knowledge or information, relating to the connection of the plaintiff with the burning of the buildings, fully and fairly; and that Mr. Hiles believed such facts as stated to the district attorney to be true; and thereafter the district attorney, acting in his official capacity, caused the warrant to be issued, and the plaintiff arrested, and the subsequent proceedings to be had that were had in that action,--then, in such case, the defendant is not liable in this action.” The same instruction was substantially given in other forms, but with the additional condition that the defendant believed the plaintiff to have been guilty of the crime with which he was charged. We think these instructions state the law correctly. That a belief by defendant in the truth of the statements made to him by other persons as to the origin of the fire, and a belief that the plaintiff was guilty of setting the fire, are essential elements of good faith and integrity of purpose on the part of the defendant, cannot be doubted.

Considered most favorably for the defendant, there is much evidence and many facts in the case bearing upon the question of the good faith of the defendant, and that question is to be determined, mainly, by the inferences to be drawn therefrom. It is for the jury to do this. But if we look into the testimony more closely and minutely, the necessity of submitting the question of good faith to the jury becomes more apparent. The facts, which the defendant testified had been furnished to him by others, and which he, in turn, stated to the district attorney, were-- First. In conversations with people at Dexterville he had heard the plaintiff's name mentioned in connection with the burning. Second. One Hammond and his wife had stated to him conversations with the plaintiff's wife, before and after the fire, in which the latter indicated that she knew that the buildings were to be burned, and that Haney burned them. Third. One Ellison had told the defendant that plaintiff predicted the fire a few days before it occurred.

The alleged statements of the plaintiff's wife to the Hammonds, and similar alleged statements by her to others, furnish little or no basis of probable cause to believe the plaintiff guilty of the burning. The jury were substantially so instructed. The statement of Ellison, and certain conversations with others, tending to cast suspicion upon the plaintiff, are the only statements made to the defendant upon which the existence of such probable cause can be predicated. There is much evidence tending to show that this statement of Ellison was not repeated by the defendant to the district attorney. Ellison first testified on the subject of the alleged conversation on the trial of the plaintiff in the circuit court, and the defendant first mentioned the matter in court in his testimony on the trial of this action. Moreover, the proof is that fires had recently been set by a locomotive passing near the buildings which were afterwards burned, and the plaintiff, who had been appointed to watch those buildings, only predicted that they would be burned unless the shavings around them should be removed. It is a significant fact that neither Ellison, nor either of the Hammonds, was called as a witness on the trial, and the failure to call them was not explained. Indeed, it appeared that the male Hammond was in Sparta, where the cause was tried, while the trial was in progress. The other statements so made to the defendant are of a character which rendered it proper for the jury to determine the weight to which they were entitled. Whether the defendant new of the alleged statement or prediction to Ellison when he instituted the prosecution, and if he did, and advised the district attorney thereof, what infe ences, under the circumstances, should be deduced therefrom, and also from such other statements, affecting the question of probable cause, were peculiarly for the determination of the jury.

Second. It cannot be successfully questioned, we think, that the testimony was sufficient to send the question of the defendant's malice to the jury. It tends to show angry interviews between the parties, immediately before the criminal prosecution was commenced, with reference to the cause of the fire, and the value of the property destroyed, and a peremptory refusal by the plaintiff to make a certain statement concerning such value which the defendant several times urged him to make. It is immaterial that the truth of such testimony is denied by other testimony in the case. It was competent for the jury to believe the testimony of the plaintiff in that behalf, and to find therefrom the existence of malice on the part of the defendant. Such malice may also have existed in the absence of actual hatred or ill will towards the plaintiff. If the criminal prosecution of the plaintiff was without probable cause, and was prompted by any improper motive on the part of the defendant, it was a malicious prosecution. The testimony (although controverted) tends to show that the property burned was insured to an amount greatly in excess of its value; that the insurance companies were investigating the loss immediately before the plaintiff was arrested; that the agents of the companies thought it a singular fire, and that, at about the same time, the plaintiff had expressed to the defendant the opinion or suspicion that the property had been destroyed for the purpose of getting the insurance thereon. If the jury believed this testimony, it was reasonable and proper to infer therefrom that the plaintiff, his wife, and Haney were charged with the burning for the purpose of allaying any suspicion those companies might entertain that the property was destroyed for the purpose above suggested. For these reasons, we think the instructions on the subject of malice are unexceptionable. They are as...

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14 cases
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    • United States
    • North Dakota Supreme Court
    • April 29, 1897
    ... ... 601; Brown v ... Cope, 90 Mo. 377. Malice does not mean hatred or ill ... will, but includes ulterior or improper motive. Spear v ... Hill, 30 N.W. 506; Johnson v. Ebberts, 11 F ... 129. It may be inferred from want of probable cause ... Louisville, etc. R. Co. v ... ...
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