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

• Decision Date: 06 June 1950
• Citation: 257 Wis. 228,43 N.W.2d 244
• Parties: ELMER, v. CHICAGO & N. W. RY. CO.
• Court: Wisconsin Supreme Court

Page 244

43 N.W.2d 244

257 Wis. 228

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

Supreme Court of Wisconsin.

June 6, 1950.

Rehearing Denied Sept. 6, 1950.

Cleland P. Fisher, Janesville, for appellant.

Edward H. Borgelt, Richard S. Gibbs, James R. Walker, all of Milwaukee, for respondent.

MARTIN, Justice.

The six essential elements in an action for malicious prosecution are:

1. There must have been a prior institution or continuation of some regular judicial proceedings against the plaintiff in this action for malicious prosecution.

2. Such former proceedings must have been by, or at the instance of the defendant in this action for malicious prosecution.

3. The former proceedings must have terminated in favor of the defendant therein, the plaintiff in the action for malicious prosecution.

4. There must have been malice in instituting the former proceedings.

5. There must have been want of probable cause for the institution of the former proceedings.

6. There must have been injury or damage resulting to the plaintiff from the former proceedings. Stidham v. Diamond State Brewery, Inc., 1941, 2 Terry 330, 41 Del. 330, 21 A.2d 283, 284; 54 C.J.S., Malicious Prosecution, p. 955, § 4.

Several of the named essentials are admittedly present in this case. (1) There was a former criminal proceeding instituted against John Elmer, the present plaintiff. (2) Such proceeding was instituted by the present defendant through its agent and employee, Fred M. Schleicher; and (3) The former proceeding terminated in favor of the defendant therein as the criminal charge was dismissed on motion of the district attorney for insufficient evidence. Finally (6) there is evidence of damage to the present plaintiff.

This then leaves to be considered the two elements of the action, viz: (4) The existence of malice in the original prosecution, and (5) the want of probable cause in instituting such original prosecution.

Malice may be actual or inferred. 54 C.J.S., Malicious Prosecution, p. 1003, § 41. The use of criminal process for private purposes shows the existence of malice. 54 C.J.S., Malicious Prosecution, p. 1006, § 42b. It may be inferred from lack of probable cause. 54 C.J.S., Malicious Prosecution, p. 1006, § 43.

The main issues to be determined here are whether there was probable cause for defendant's agent, Schleicher, to make the complaint against John Elmer charging him with larceny, and whether Schleicher made a full and fair disclosure of the facts to the district attorney.

'Probable cause' has been defined to be such a state of facts in the mind of the prosecutor as would lead a man of ordinary caution and prudence to believe or entertain an honest and strong suspicion that the person arrested is guilty. It is generally held that whether a defendant sued for malicious prosecution acted on probable cause is a mixed question of law and fact. Where the facts are in dispute, the jury determines the facts under proper instruction of the trial court, and the court determines the question of probable cause from such facts. Where the facts are undisputed, the question of probable cause is solely for the court. De Vries v. Dye, 1936, 222 Wis. 501, 504-505, 269 N.W. 270.

An examination of the testimony of defendant's agent, Schleicher, in plaintiff's affidavit filed in opposition to defendant's motion for summary judgment, discloses that Schleicher had no personal knowledge that Elmer had committed any offense. Schleicher did not see the rails removed. The only other railroad witness for the defendants was a flagman who saw Elmer on August 5 at about 11:15 a. m. openly load two pieces of rail onto his car. There was no concealment of any kind about the transaction. On preliminary examination the flagman testified: 'Mr. Elmer did not appear to be a man stealing rails when I saw him.' He did not report the matter to the police. The police officer for the city of Evansville testified that on June 27, 1947, he saw Elmer loading a rail on his automobile and on cross examination testified as follows with regard to his conversation with Elmer: 'I asked him whose rails they were, and he said his; that he had bought them from the North Western Railroad Company.'

The summary judgment statute, sec. 270.635, Stats., does not authorize the trial of contested issues on affidavits. Prime Mfg. Co. v. A. F. Gallun & Sons Corp., 1938, 229 Wis. 348, 355, 281 N.W. 697; Parish v. Awschu Properties, Inc., 1945, 247 Wis. 166, 173, 19 N.W.2d 276.

It was stated in Hanson v. Halvorson, 1945, 247 Wis. 434, 437-438, 19 N.W.2d 882, 883: 'Under the facts above stated and the array of cases above cited announcing the principles governing denial of a summary judgment, it is manifest that summary...