Bowman v. Brown

• Decision Date: 05 December 1879
• Citation: 52 Iowa 437,3 N.W. 609
• Parties: M. T. V. BOWMAN, APPELLANT, v. HARVEY W. BROWN AND OTHERS, APPELLEES.
• Court: Iowa Supreme Court

52 Iowa 437

3 N.W. 609

M. T. V. BOWMAN, APPELLANT,

v.HARVEY W. BROWN AND OTHERS, APPELLEES.

Supreme Court of Iowa.

Filed December 5, 1879.

Appeal from Polk circuit court.

Action upon a bond executed by defendant Brown and two sureties conditioned that Brown, while in the employment of plaintiff as book-keeper and clerk, shall render true account for and pay all moneys, coming into his hands in the course of his employment, to plaintiff. The cause was continued as to the sureties. Brown answered, admitting the receipt of the moneys charged in the petition, but alleging that he had accounted for and paid over the same. He further pleaded, as a counter claim, that plaintiff had caused him to be accused of and indicted for larceny, for feloniously stealing and embezzling $278, without reasonable or probable cause, and with malice, and with the full knowledge of plaintiff's innocence, and that plaintiff falsely testified upon the trial of the indictment, and thereon plaintiff was convicted, whereby he sustained damages in the sum of $10,000.

There was a verdict and judgment for defendant in the sum of $3,000. Plaintiff appeals.Phillips, Goode & Phillips, for appellant.

Parsons & Runnells, for appellees.

BECK, C. J.

1. The defendant Brown, in his answer, admitted the receipt by him of the identical sums of money which he is charged with appropriating to his own use in the petition, but he alleged that he accounted therefor, and paid the same as required in the discharge of his duty. There was evidence introduced by him tending to support the allegations of his answer. Plaintiff introduced evidence, consisting of his books of account and other testimony, tending to show that defendant had failed to account for certain moneys received by him in the course of his employment. Upon the issues arising on the counter claim there was evidence introduced tending to prove that plaintiff had testified before the grand jury finding the indictment, and upon the trial, and that he had instigated the prosecution.

2. The court gave the following instruction to the jury:

“7. In this cause it is admitted by the pleadings that the defendant was convicted of the offense charged, and if there has been no proof offered showing upon what evidence such conviction was had, then the conviction of the defendant in said cause is conclusive evidence of the existence of probable cause, and you will find for plaintiff or defendant's counter claim; but if the evidence by plaintiff, upon which said conviction was had, has been proved before you, and you find that the same was false, and that said conviction was without foundation in law, then you will find for defendant upon his counter claim, if you find such prosecution was malicious and without probable cause. * * * * *” This instruction, in holding that conviction of the defendant was not conclusiveupon the question whether plaintiff had probable cause to prosecute defendant, is probably correct. Moffett et al. v. Fisher, 47 Iowa, 473.

The second sentence of the instruction seems to hold that to render plaintiff liable the jury should find that he testified falsely, and that defendant was convicted illegally, “without foundation of law,” and the prosecution was malicious, and without probable cause. We cannot prove this instruction. We think that if plaintiff instituted the prosecution maliciously, and without probable cause, he would be liable even though he did not testify falsely in the case. The instruction, however, should have been regarded and followed by the jury as the law of the case, and under it, we think, there is an utter failure of testimony to support the verdict. The evidence utterly fails to show what testimony was given by plaintiff on the trial of the indictment. It was, therefore, impossible for the jury to find that plaintiff did testify falsely.

3. We think, too, that there is an utter absence of testimony tending to show want of probable cause for the prosecution, and that on the contrary it clearly apppears that plaintiff had probable...