Bayliss v. Clayton
| Decision Date | 08 March 1932 |
| Parties | BAYLISS v. CLAYTON ET AL. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from an order of the Circuit Court for Milwaukee County; Daniel W. Sullivan, Circuit Judge.
Affirmed.
Action by Frank Bayliss, plaintiff, commenced on the 19th day of December, 1928, against the defendants Hoy B. Clayton and Clayton Construction Company, to recover damages resulting from malicious prosecution. The jury returned a verdict in favor of the plaintiff, which verdict the court set aside and granted a new trial by its order dated the 23d day of April, 1930. From this order the plaintiff appeals.Brennan, Lucas & McDonough, of Milwaukee, for appellant.
Wehe & Landry, of Milwaukee, for respondents.
[1][2] This action was brought by the plaintiff to recover damages for malicious prosecution. There was a verdict of the jury in favor of the plaintiff. This verdict was set aside by the court and a new trial granted in the interests of justice. The plaintiff appeals from that order. This is a highly discretionary order and will not be reversed by this court unless it clearly appears that there was an abuse of judicial discretion. John v. Pierce, 176 Wis. 220, 186 N. W. 600;McCoy v. Terhorst, 188 Wis. 512, 205 N. W. 420;Fontaine v. Fontaine (Wis.) 238 N. W. 410. We discover no abuse of discretion, and the order cannot be reversed upon plaintiff's appeal.
[3][4][5] The defendants have filed a notice of review under section 274.12, Stats., and upon such notice assign as error the failure of the court to receive in evidence a judgment of conviction of the plaintiff in the district court of the city of Milwaukee.
This action grew out of the arrest of the plaintiff upon a complaint sworn to by the defendant Hoy B. Clayton, an officer of the defendant Clayton Construction Company, for the theft of certain cement sacks of the value of $1. He was convicted in the district court of Milwaukee county, but upon appeal to the municipal court, from which a change of venue was taken to the circuit court, he was acquitted by a jury in the latter court. Upon the trial the defendants offered in evidence the judgment of conviction in the district court, which was rejected.
The record of the judgment of conviction should have been received in evidence. Judgment in a criminal prosecution, obtained without collateral fraud, though subsequently reversed, is conclusive evidence of probable cause for the prosecution. Topolewski v. Plankinton Packing Co., 143 Wis. 52, 126 N. W. 554. That case conclusively settles the proposition in this state that a judgment of conviction in a criminal case, obtained without collateral fraud, though subsequently reversed, is conclusive upon the existence of probable cause. Since the decision in that case, however, the Legislature has enacted section 331.36, which reads as follows: “In any civil action brought by any person for damages for false arrest or malicious prosecution committed in this state, the fact that the plaintiff was bound over and held for trial on preliminary hearing upon such arrest, or that a conviction was had in a criminal prosecution against him, shall not bar a recovery, but such plaintiff shall be entitled to recovery upon proof of misrepresentation to the presiding magistrate, or to the jury in any court to obtain a binding over, holding for trial or conviction, of innocence of the plaintiff and of lack of probable cause to the knowledge, or within reasonable knowledge of the arresting officer, and such issues shall be tried and determined by the jury in such civil action for damages.” We are required to consider the extent to which this statute modifies the rule in the Topolewski Case.
It is apparent that the record of the judgment of conviction is still admissible in evidence. It does not absolutely bar a recovery, but the statute provides that, notwithstanding the conviction, the plaintiff may still recover “upon proof of misrepresentation to the presiding magistrate, or to the jury in any court to obtain a binding over, holding for trial or conviction.” Just what is meant by “misrepresentation to the presiding magistrate, or to the jury,” is not very clear. For our present rather general purposes we shall assume that it means the “collateral fraud” which the court had in mind in stating the rule in the Topolewski Case. Laun v. Kipp, 155 Wis. 347, 145 N. W. 183, 5 A. L. R. 655, and cases there cited, may throw some light on the nature of “collateral fraud.” Up to this point, as we are now advised, the statute does not change the pre-existing rule.
The judgment of conviction is admissible in evidence, but it shall not bar a recovery if it can be impeached for collateral fraud. But the statute further provides that the plaintiff may recover, notwithstanding the judgment, upon proof “of innocence of the plaintiff and of lack of probable cause to the knowledge, or within reasonable knowledge of the arresting officer.” By virtue of this provision the plaintiff may defeat the conclusive effect of the judgment of conviction if he is able to prove, not only his innocence, but “lack of probable cause to the knowledge, or within reasonable...
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Tarantino v. Griebel
...protection to all parties and persons in privity with them.' The Topolewski case, supra, was followed by this court in Bayliss v. Clayton, 1932, 207 Wis. 313, 241 N.W. 329. In that case the plaintiff in the malicious prosecution action had pleaded not guilty in the district court of Milwauk......