Elmer v. Chicago & N.W. Ry. Co.

• Decision Date: 05 February 1952
• Parties: ELMER, v. CHICAGO & N. W. RY. CO.
• Court: Wisconsin Supreme Court

Page 707

51 N.W.2d 707

260 Wis. 567

ELMER, v. CHICAGO & N. W. RY. CO.

Supreme Court of Wisconsin.

Feb. 5, 1952.

An action for damages for malicious prosecution begun October 10, 1948, by John Elmer against Chicago & North Western Railway Co., a corporation. There was a directed verdict in favor of the defendant March 1, 1951. Plaintiff appeals.

The complaint alleges that the plaintiff was unlawfully and maliciously charged with the crime of larceny and prosecuted therefor without probable cause. The answer of the defendant alleges probable cause; that the company's agent, in signing the complaint, acted upon the advice of a duly qualified practicing attorney, the district attorney of Rock county, Robert D. Daniel, after having made a full and fair disclosure of all the facts pertinent to said charge within his knowledge or information; 'that he was thereupon advised by the said District Attorney that it appeared that an offense had been committed and that there was reasonable and probable cause to believe that the plaintiff, John Elmer, was guilty thereof.'

It appears that early in the morning of June 27, 1947, the plaintiff was seen by Officer Whaley of the Evansville Police Department loading rails on to his car, that this was at either 2:20 a. m. or 4:00 a. m., while it was dark, and the officer, with his spot light, observed what was transpiring. When questioned by the officer, the plaintiff said first that he had bought the rails from Brunsell and Fellows Coal Dealers at Evansville, whose yards adjoined the North Western right of way; second, that he had bought them from the North Western Railway; and again, that if the officer and chief of police wanted to know anything more about them they should ask the section foreman. The incident was reported to the chief of police at Evansville, but no action was taken at that time. On October 1, 1947, one Fred M. Schleicher, a detective employed by the defendant, who was investigating the losses of rails from the defendant's premises, came to Evansville and there learned from the chief of police that one of the officers of the police department had made the report of seeing Elmer load rails onto his car early in the morning of June 27, 1947. The detective was shown the police department report. He then talked to the crossing watchmen, each of whom told him about the plaintiff's taking rails and said that they were taken in each instance from the Chicago & North Westtern stock pile. Later in the day the detective talked with the plaintiff about the rails, but the plaintiff made no response to his questions. The detective suggested to the plaintiff that he (Elmer) had better go home and think about it, and that he would meet him the next morning at about 8:00 o'clock in the Evansville Police Department. The plaintiff did not keep the appointment. The detective went to Janesville and gave the evidence he had gathered to the district attorney. The testimony of the district attorney confirms this conference and shows that the detective told him of having talked to several witnesses who gave him information about having seen plaintiff take the rails. He also told him that Elmer had made some claim to having purchased the rails from the Chicago & North Western Railway, but that no effort had been made through the proper channels to purchase those rails. At the conclusion of this conference the district attorney advised the railway company detective that it was proper to issue a complaint and warrant charging larceny of rails. The district attorney then prepared a complaint and had Mr. Schleicher sign it. After the warrant was issued, the detective took it to the chief of police at Evansville. When the warrant was served upon the plaintiff, he 'made some remark to the Chief and took out his billfold, taking from it $60.00 in bills and told him to take that as he thought it would take care of the matter.' The chief then told Elmer that he was not there to accept any money for the railroad. The plaintiff did not at any time make any claim to the chief or the detective that the rails were his property. Later there was a preliminary examination, as appears from the official docket of the Municipal Court of Rock county in the case of State of Wisconsin v. Jack Elmer. It also appears, among other things, that there were continuances of the case, but that on October 21, the preliminary hearing was held with witnesses sworn, and the court found ...