Cullen v. Hanisch

• Decision Date: 01 April 1902
• Parties: CULLEN v. HANISCH.
• Court: Wisconsin Supreme Court

114 Wis. 24

89 N.W. 900

CULLEN

v.HANISCH.

Supreme Court of Wisconsin.

April 1, 1902.

Appeal from circuit court, Dodge county; James J. Dick, Judge.

Action by Thomas Cullen against Oscar Hanisch. From a judgment for plaintiff, defendant appeals. Reversed.

This is an action for damages for malicious prosecution, commenced November 26, 1900. The complaint alleges, in effect, that October 2, 1900, the defendant maliciously and without reasonable or probable cause made complaint on oath before a justice of the peace, charging the plaintiff with having on that day, in the city of Waupun, concealed, removed, and driven away a certain brown stallion, named “Suzerain,” after having conveyed the stallion to the defendant by chattel mortgage, and during the existence of the lien thereon and title thereto created by the mortgage, and without the consent of the defendant as such mortgagee, and with the intent to defraud the defendant, and thereupon procured and caused to be issued by such justice a warrant reciting the substance of such complaint, and upon which the plaintiff was upon the day named arrested and taken before such justice; that the plaintiff thereupon caused the venue to be changed to another justice, on the ground of prejudice; that the plaintiff was then imprisoned for one day by such other justice, and held to bail in the sum of $150; that a trial was duly had before such other justice November 3, 1900, and it appeared thereon that the offense charged had not been committed; and that the plaintiff was thereupon discharged,--and claimed $1,000 damages. The defendant answered by way of admissions, denials, and counter allegations, and especially denied that such complaint before the justice was made maliciously or without reasonable or probable cause, and alleged, in effect, that the complaint was made upon the advice of counsel, to whom he fully and fairly stated the case, and that such complaint was made in good faith, firmly believing that the statements therein contained were true, and that just before and at the time of making such complaint there was a general rumor in the vicinity where such offense was alleged to have been committed that the plaintiff was guilty thereof. January 14, 1901, the defendant moved the court for an order requiring the plaintiff to give security for costs, which was denied, with $5 costs against the defendant. It is admitted that the plaintiff executed and delivered to the defendant the chattel mortgage mentioned, May 6, 1899, upon the stallion and other property, to secure his note executed at the same time for $150, payable May 6, 1900; but the plaintiff claimed that it was fully paid prior to his arrest, and that fact was denied by the defendant, who insisted that it was unpaid, and a valid and subsisting mortgage. At the close of the trial the jury returned a special verdict to the effect (1) that the criminal prosecution commenced by the defendant against the plaintiff was terminated before the commencement of this action; (1 1/2) that the indebtedness secured by the chattel mortgage in question was paid before the commencement by the defendant of the criminal prosecution against the plaintiff; (2) that the motive of the defendant in instituting the prosecution complained of was malicious; (3) that the defendant, in procuring the warrant in question to be issued, acted maliciously; (4) that the defendant, in procuring the warrant in question to be issued, acted without probable cause for so doing; (5) that the defendant, in commencing the criminal prosecution against the plaintiff, acted without probable cause; (6) that the defendant, before commencing the criminal prosecution against the plaintiff, did not make a full, fair, and honest statement of all the material facts bearing upon the question of the plaintiff's guilt of the offense alleged against him to an attorney at law, for the purpose of procuring legal advice thereon; (7) that the defendant, in making such statement, withheld from the attorney some material fact to his knowledge bearing upon the question of the plaintiff's guilt of the offense charged against him; (8) that the defendant, in commencing the criminal prosecution in question, did not act in good faith upon the advice of counsel; (9) that the defendant, in commencing the criminal prosecution in question, acted upon his own judgment; (10) that the defendant did not commence the criminal prosecution against the plaintiff under the honest belief that the plaintiff was guilty of the offense charged against him; (11) that such belief of the defendant was not founded upon facts and circumstances sufficient to produce in the mind of a reasonable and prudent man such a serious suspicion of the plaintiff's guilt of the offense charged against him as to repel the idea that he was actuated by malice; (12) that they assessed the plaintiff's actual damages at $200, and his exemplary damages at $125, making in all $325. Judgment was thereupon entered in favor of the plaintiff for $325 damages and $80.62 costs. From that judgment the defendant brings this appeal. He also appeals from the order refusing security for costs.C. E. Hooker, for appellant.

Ned Roney for respondent.

CASSODAY, C. J. (after stating the facts).

Error is assigned because the court refused to require the plaintiff to give security for costs. The statute provides that “any court of record in which a civil action may be pending, may, in all cases where it shall appear reasonable and proper, require the plaintiff to give sufficient security for all such costs as may be awarded against him therein.” Section 2942, Rev. St. 1898. Upon the showing made, the court might properly have granted the defendant's motion, and required the plaintiff to give security for costs. But the motion was under the statute, as repeatedly construed by this court, addressed to the sound discretion of the trial court, and we cannot say that there was an abuse of such discretion. Heeron v. Beckwith, 1 Wis. 17;School Dist. v. Kemen, 72 Wis. 179, 39 N. W. 131. Besides, the order is not appealable. Section 3069, Rev. St. 1898.

2. It is claimed that the verdict is against the weight of evidence. But that question was for the jury to determine. We cannot say that there is no evidence to sustain the verdict,--much less, that it is contrary to the evidence.

3. Error is assigned for the exclusion of testimony. The plaintiff, after testifying on his direct examination that when he was arrested he was put in the city lock-up, and on his cross-examination that he had lived in Waupun for two years, and before that a year or so at Beaver Dam, and before that a year and half at Columbus, was asked this question: “A part of that time you were in jail, were you not?” Error is assigned because that question was excluded. We find no error in such ruling. It did not appear, and he was not asked, whether he had ever been convicted of any criminal offense. The statute authorized the proof of such conviction to affect the plaintiff's “credibility, either by the record or by his own cross-examination.” Section 4073, Rev. St. 1898. The mere fact of being in jail would be without significance. Nor can we say it was error not to require him to answer on cross-examination whether on his divorce trial, some years before, six witnesses had not testified that his reputation for truth and veracity was bad, and that they would not believe him under oath. Id. It was, at most, hearsay, and not legitimate cross-examination, nor a proper way of impeaching the plaintiff as a witness in his own behalf. 1 Greenl. Ev. (15th Ed.) §§ 461-469. Certainly there was no error in not allowing the defendant's impeaching witness Rowell to testify that upon a former trial of a case in which he was interested, and the plaintiff was a witness, he found 18 witnesses who would not believe the plaintiff under oath. Such testimony would have been the merest hearsay.

4. Error is assigned because the court refused to submit to the jury this question: “Was there a general rumor in Waupun, at the time the plaintiff was arrested on the charge of removing or concealing chattelmortgaged property, that he was guilty thereof?” In support of such contention, counsel cite the statute which requires the trial court to “direct the jury to find a special verdict * * * in the form of questions, in writing, relating only to material issues of fact, and admitting a direct answer, to which the jury shall make answer in writing.” Rev. St. 1898, § 2858. That statute has frequently been construed “to limit such questions to such facts as are controverted and put in issue by the pleadings, or, at most, to such as might properly have been put in issue by the pleadings.” Heddles v. Railroad Co., 74 Wis. 258, 42 N. W. 237, and cases there cited. But the form of the verdict in all such cases is very much in the discretion of the trial court. Id; Lee v. Railroad Co., 101 Wis. 362, 77 N. W. 714. The important issue on the trial was whether the defendant procured the arrest of the plaintiff maliciously, and without reasonable or probable cause to believe he was guilty of the offense, under the statute, of which he was charged. Section 4467, Rev. St. 1898. The fact whether there was such general rumor of the plaintiff's guilt at the time was simply a matter of evidence, bearing upon the question whether the defendant procured the arrest maliciously and without reasonable or probable cause. Upon the fifth question submitted, the court charged the jury on the subject of probable cause, and, among other things, said: “If you find from the evidence that there was a general rumor in the city of Waupun, known to the defendant before the commission of said alleged offense by the defendant, then you may take into consideration such fact, with the other evidence in the case, on the question of probable cause, and on the question of the defendant's acting in good faith and without malice.”...