Bank of Miller v. Richmon

• Decision Date: 05 March 1902
• Citation: 89 N.W. 627,64 Neb. 111
• Parties: BANK OF MILLER ET AL. v. RICHMON.
• Court: Nebraska Supreme Court

64 Neb. 111

89 N.W. 627

BANK OF MILLER ET AL.

v.RICHMON.

Supreme Court of Nebraska.

March 5, 1902.

Syllabus by the Court.

1. In an action for malicious prosecution of a criminal action, or for an offense which imputes moral turpitude or want of integrity, it is competent for the plaintiff, in making his case in chief, to show his previous good character as bearing directly upon the question of probable cause, where such reputation was known to the defendant, or was of such general notoriety that he will be presumed to have known it.

2. Where a person is charged with being about to leave the state for the purpose of avoiding an examination concerning his property, and is arrested under the provisions of section 535 of the Code of Civil Procedure, and brought before the county judge for examination, an order, made upon hearing, that there was not sufficient evidence to warrant the arrest of the accused, is sufficient to show the proceedings fully terminated so far as the question of malicious prosecution is concerned, although the record fails to show a formal discharge.

3. The question as to what constitutes probable cause is a question for the court to determine, and not for the jury; that is, the court must determine as a matter of law whether the facts are of such a character as would warrant a man of ordinary prudence in filing a complaint. An instruction which leaves to the jury to determine not only the facts, but also whether these facts would constitute probable cause, is erroneous.

Commissioners' opinion. Department No. 1. Error to district court, Buffalo county; Sullivan, Judge.

Action by James E. Richmon against the Bank of Miller and another. Judgment for plaintiff. Defendants bring error. Reversed.W. L. Hand, for plaintiffs in error.

W. D. Oldham and Norris Brown, for defendant in error.

DAY, C.

James E. Richmon brought this action in the district court of Buffalo county against the Bank of Miller and Nelson Maddox to recover damages for malicious prosecution. The trial resulted in a judgment in favor of the plaintiff for $400, to review which the defendants have brought error to this court.

The petition alleged that on January 13, 1898, the defendants falsely, maliciously, and without reasonable or probable cause caused the plaintiff to be arrested under the provisions of section 535 of the Code of Civil Procedure, which provides for the arrest and detention of debtors about to leave the state to avoid an examination concerning their property until such time as the examination can be had. The answer admitted the filing of the affidavit and the arrest and detention of the plaintiff, but alleged that defendants acted upon sufficient and reliable information, which led them to believe, and they did believe, that plaintiff was about to leave the state for the purpose of defrauding his creditors and avoiding an examination concerning his property; that they acted in good faith, and without malice, and upon the advice of counsel, to whom they had previously communicated all the facts.

A number of errors are assigned for a reversal of the judgment, some of which we deem it unnecessary to consider, as they are not likely to again arise upon another trial of the case. Upon the trial the plaintiff was permitted, over the objection of the defendants, to introduce evidence tending to show his good reputation in the community at the time of his arrest. This ruling of the court is one of the errors now complained of. In ordinary civil suits it is undoubtedly the rule that evidence of good character is not permissible in making out a case in chief, and the authorities are in conflict as to whether in actions for malicious prosecution of a criminal action the plaintiff may, in the first instance, prove his good character. Some courts of high authority maintain the view that in actions for malicious prosecution of a criminal action the plaintiff may, in the first instance, prove his own good character as tending to show that the prosecution was without probable cause. In McIntyre v. Levering, 148 Mass. 546, 20 N. E. 191, 2 L. R. A. 517, 12 Am. St. Rep. 594, it is said: “In an action for malicious prosecution, plaintiff, in order to prove that the prosecution was without probable cause, may show his good reputation, known to the defendant when the prosecution was commenced.” This view also finds support in the following cases: Woodworth v. Mills, 61 Wis. 44, 20 N. W. 728, 50 Am. Rep. 135;Israel v. Brooks, 23 Ill. 576;Miller v. Brown, 3 Mo. 127, 23 Am. Dec. 693; and Blizzard v. Hays, 46 Ind. 166, 15 Am. Rep. 291. While it is true that every one is presumed to have a good character until the contrary is shown, and this presumption ordinarily saves the necessity of proof, yet when one is charged with crime, or with an act which imputes moral turpitude or want of integrity, he is not obliged to rest upon the legal presumptions in his favor, but may show, if he can, his good character. So, in an action for malicious prosecution, where the party is charged with a criminal act, or an offense involving moral turpitude or lack of integrity, the better rule, as it seems to us, is to permit the plaintiff, in making his case...