Bigelow v. Sickles

• Decision Date: 03 June 1891
• Citation: 80 Wis. 98,49 N.W. 106
• Parties: BIGELOW v. SICKLES ET AL.
• Court: Wisconsin Supreme Court

80 Wis. 98

49 N.W. 106

BIGELOW

v.SICKLES ET AL.

Supreme Court of Wisconsin.

June 3, 1891.

Appeal from circuit court, Walworth county; JOHN B. WINSLOW, Judge.

Action for malicious prosecution by Clara Bigelow against B. Z. Sickles and Zachariah Sickles. From a verdict and judgment for plaintiff, defendants appeal.Kirkland & Grimm and Winkler, Flanders, Smith, Bottum & Vilas, for appellants.

Rogers & Hall and Geo. W. Bird, for respondent.

Counsel for appellants cited the following cases and authorities: R. v. M., 21 Wis. 50; King v. Colvin, 11 R. I. 582; Cecil v. Clarke, 17 Md. 508;Winn v. Peckham, 42 Wis. 499;Skidmore v. Bricker, 77 Ill. 164; 2 Phil. Ev. p. 50, (Cowen, H. & E. note, 273,) Starkie, Ev. pt. 2, pp. 182, 184; Id. pt. 4, p. 913; Stewart v. Sonneborn, 98 U. S. 187, 195;Israel v. Brooks, 23 Ill. 575;Thorpe v. Balliett, 25 Ill. 339;Comisky v. Breen, 7 Ill. App. 369;Stone v. Crocker, 24 Pick. 81;Kidder v. Parkhurst, 3 Allen, 393;Thompson v. Rubber Co., 56 Conn. 493, 16 Atl. Rep. 554;Staub v. Van Benthuysen, 36 La. Ann. 467;Bitting v. Ten Eyck, 82 Ind. 421;Adams v. Lisher, 3 Blackf. 445;Bell v. Pearcy, 11 Ired. 233; Scott v. Simpson, 1 Sandf. 601; Roberts v. Bayles, Id. 47; Ullman v. Abrams, 9 Bush. 738;Sweeney v. Perney, (Kan.) 19 Pac. Rep. 328; Williams v. Vanmeter, 41 Amer. Dec. 644; Griffin v. Chubb, 7 Tex. 614;Heldt v. Webster, 60 Tex. 207.

ORTON, J.

This action is brought by the plaintiff against the defendants for malicious prosecution in making and procuring to be made a complaint on oath before a justice of the peace, charging her, by the name of Clara Robbins Sickles, with having committed adultery. The defendant B. Z. Sickles denied only the malice, want of probable cause, and intent to injure, and alleged good faith and honest belief and good reason to believe the charge was true, and that he had been so informed, and that her general reputation for chastity was bad. The defendant Zachariah Sickles made the same denials and allegations, and, in addition thereto, that he had nothing to do with the prosecution. It appears that the plaintiff was formerly the wife of John Sickles, the brother of B. Z. Sickles and son of Zachariah; and from the testimony admitted to show the malice of the defendants it appears that she had been for a long time the subject of their outrageous bad treatment and abuse, to an extent which it is not necessary or proper to mention beyond this general statement. The jury found a verdict for the plaintiff of $5,000; and it may as well be said here, in answer to the last point made in the brief of the learned counsel of the appellants, that we think the verdict was warranted by the testimony, and is not excessive in amount. The testimony is very voluminous, and there is no occasion for reviewing or making any statement of it on any question going to the merits of the case, and we shall therefore confine ourselves to the assignments of error.

1. It seems that the adultery charged was mainly located at the place and on the occasion of a certain picnic at the house of the witness Charles Woelfer, in the town of Deerfield, about the 1st of September, 1886, and the said witness was asked as to the plaintiff's conduct, situation, and circumstances while at and about said picnic, in order to show that she was not guilty of the act charged, at least on that occasion. The offer of this testimony was objected to by the learned counsel of the appellants, on the ground that the plaintiff's guilt or innocence was not at issue in the case. The court held that it was proper to offer such proof, it appearing that the transactions at that picnic were the foundation of at least part of the testimony on the examination before the justice. The husband of the plaintiff, John Sickles, was at the picnic, and knew something of the conduct of his wife on that occasion. The defendants state in their answer that B. Z. Sickles was informed by divers persons that the plaintiff was guilty of the charge, and if, in their defense, the grounds of the charge were in part what occurred at that picnic, they must have been informed of it. The defendant B. Z. Sickles testified that he was informed, at least in part, of what occurred there. This evidence scarcely raises the question whether it was proper for the plaintiff to prove her innocence. It was, to the extent offered and admitted, proper to show that nothing occurred at the picnic of a suspicious character, or that constituted probable cause for the complaint. It was incumbent on the plaintiff to prove a want of probable cause, and if her offense was located, even in part, as seems to have been the case, at or about that picnic, or confined to that occasion, she must go there to show the want of probable cause, and show, if she can, that nothing occurred on that occasion to justify or excuse the prosecution. This would seem to be directly within the issue. But the testimony offered may have been proper even to prove negatively that the plaintiff was innocent of the charge. It is proper for the defendant to introduce evidence tending to show that the plaintiff was guilty of the charge, both in proof of probable cause, and in mitigation of damages, and without proof that he was informed of the testimony before he made the charge. Bacon v. Towne, 4 Cush. 217;Bell v. Pearcy, 5 Ired. 83; Plummer v. Gheen, 14 Amer. Dec. 572; 1 Hill. Torts, 471. The guilt of the plaintiff being a proper issue for the defendant, there appears no good reason why the plaintiff may not rebut such evidence given or anticipated, and show that she was innocent of the charge; and, if the defendant may do this without showing any previous knowledge of the testimony, why may not the plaintiff? But it seems to be held in the cases cited by the learned counsel of the appellants, that such evidence is proper for the plaintiff if the defendants had knowledge of it before they commenced the prosecution. Cecil v. Clarke, 17 Md. 508; King v. Colvin, 11 R. I. 582. The prosecution seems to have been based, in part, at least, on what the defendants had been informed took place at the picnic, and the defendant B. Z. Sickles testified that one Timothy O'Herrin told him that he was at the picnic, and saw the plaintiff and Tony Hoover together under very suspicious circumstances in Woelfer's barn. This certainly put the defendant on inquiry of the plaintiff's conduct at the picnic, generally, and it may properly be inferred that he was informed of it. This would make the evidence offered admissible, according to the position assumed by the learned counsel of the appellants.

2. The witness Charles Woelfer testified that the plaintiff was at the picnic, and at one time she was in a tobacco-shed while it rained, with others; and her husband, John Sickles, came in, and spoke to her. The witness was then asked by the plaintiff's counsel: “What did he say to her?” This was objected to by the defendants' counsel. The court ruled that the plaintiff's counsel “may show what took place there.” This ruling was excepted to by the defendants' counsel. This must have been understood to mean what took place between the plaintiff and others, with a view of showing that nothing improper took place, so far as the plaintiff was concerned, as the court had already ruled that the transactions at the picnic were proper to be shown with that view. It follows, therefore, that the court virtually sustained the objection to the question asked, and suggested the proper question: “What took place there?” But the witness volunteered to answer the question as put by the counsel, rather than to answer the question as modified by the court, and he answered: “Well, he says: ‘You G____d d____n w____e. What are you doing here amongst all these men?’ and he kind of made towards her, and she cried, and says she had come out of the rain.” This is claimed by the learned counsel of the appellants to be such an error as ought to cause a reversal of the judgment. Besides its immateriality, the learned counsel contend that this improper answer was responsive to the question, and was calculated to prejudice the jury against the defendants, they being the father and brother of the plaintiff's low and brutal husband, and by showing that hatred and abuse of the plaintiff were the characteristics of the whole family. The answer, as well as the original question, were clearly improper. What the husband said on that occasion had nothing to do with the conduct of the plaintiff in respect to the crime charged, and it can easily be seen how the plaintiff's counsel could use this answer as a make-weight before the jury. There was already too much testimony of this husband's abusive treatment of his wife, the plaintiff, to be justified, except as being connected with that of the defendants, without adding to it this horrible instance of it occurring in the absence of the defendants. But this was not the error of the court. The court ruled correctly. The plaintiff's counsel ought to have withdrawn or modified the question, and perhaps they intended to do so, and would have done so if the witness had not been swift to answer it....