Brinsley v. Schulz

• Decision Date: 14 March 1905
• Parties: BRINSLEY v. SCHULZ ET AL.
• Court: Wisconsin Supreme Court

124 Wis. 426

102 N.W. 918

BRINSLEY

v.SCHULZ ET AL.

Supreme Court of Wisconsin.

March 14, 1905.

Appeal from Circuit Court, Kenosha County; Orren T. Williams, Judge.

Action by Alfred J. Brinsley against Herman C. Schulz and another. From a judgment in favor of defendants, plaintiff appeals. Affirmed.

Action to recover damages for malicious prosecution. The complaint was to the effect that defendants, November 15, 1898, for the purpose of injuring plaintiff, maliciously and without probable cause procured his arrest upon the charge of having embezzled $285, possessed by him as agent of the Pike Woods Camp, No. 391, an association of the Modern Woodmen of America; that such proceedings were duly taken pursuant to such arrest that plaintiff was imprisoned in the county jail of Kenosha county for a considerable length of time, awaiting a hearing before the justice of the peace, who issued the warrant; that he was given a hearing December 13, 1898, when the action was dismissed on motion of the district attorney; that he suffered damages by reason of the facts in the sum of $5,000. Judgment therefor with costs was demanded.

Defendants answered to this effect: November 9, 1898, plaintiff was, and for a long time prior thereto had been, in the employ of the organization mentioned in the complaint. Between May 25, 1896, and the aforementioned date as such employé he had in his possession of the moneys of such association $363.80, and being so possessed he converted said money to his own use. Upon due demand being made upon him to restore the same to such association he refused to do so. Defendants as members of such association, November 15, 1898, were empowered to take such proceedings as might be deemed necessary to recover the money so misappropriated. Thereafter they with plaintiff called upon the duly authorized attorney of such association, who was duly authorized to practice the profession of law, and discussed the matter, at which time plaintiff admitted the facts alleged, but neglected to produce the money or to pay the same to the association. The defendants made a full statement and explanation of all the facts to said attorney and were by him advised that plaintiff was guilty of the crime of embezzlement, and that they should place the matter before the district attorney of the county. Thereupon they visited such attorney and fairly and fully stated all the facts to him. He then advised them to make the complaint upon which plaintiff was arrested, and visited a justice of the peace, before whom the warrant was sworn out, and himself drafted the complaint therefor. Thereafter plaintiff made restoration of the $363.80, and at his request, and by consent of the district attorney, the criminal proceedings against him were dismissed. Defendants acted in good faith in all proceedings referred to and were guided by the district attorney upon a full statement of the facts to him.

On the trial evidence was produced on behalf of the defendants, claimed to conclusively establish the allegations of the answer as to their having fully and fairly stated all the facts to the district attorney and his having advised them to swear out the complaint for plaintiff's arrest. At the close of the evidence on both sides a verdict of no cause of action was directed. Judgment was rendered in favor of the defendants for costs upon such verdict, from which this appeal was taken.Wallace Ingalls, for appellant.

James Cavanagh, Jacob C. Kroncke, and Chester D. Barnes, for respondents.

MARSHALL, J. (after stating the facts).

In this class of cases one of the elements...