Erb v. German-American Ins. Co. of New York

• Decision Date: 24 October 1900
• Parties: B. F. ERB v. GERMAN AMERICAN INSURANCE COMPANY OF NEW YORK, GERMAN INSURANCE COMPANY OF FREEPORT, ILLINOIS, and W. A. WILKINS, Appellants, and others
• Court: Iowa Supreme Court

83 N.W. 1053

112 Iowa 357

B. F. ERB v. GERMAN AMERICAN INSURANCE COMPANY OF NEW YORK, GERMAN INSURANCE COMPANY OF FREEPORT, ILLINOIS, and W. A. WILKINS, Appellants, and others

Supreme Court of Iowa, Des Moines

October 24, 1900

Appeal from Carroll District Court.--HON. Z. A. CHURCH, Judge.

THE plaintiff states as his cause of action in substance as follows: That prior to April 3, 1896, the defendants unlawfully conspired together for the purpose of having plaintiff indicted and tried for the pretended crime of arson; that in pursuance thereof they, on April 3, 1896 wilfully and maliciously, and without probable cause therefor, did unlawfully procure him to be indicted by the grand jury of Carroll county on six several indictments for the crime of arson; that under said indictments he was arrested, put under bond, and about October 5, 1896, was put upon trial on one of said indictments, and, after full trial was acquitted, and that at the following term the other indictments were dismissed; that the defendants unlawfully maliciously, and without probable cause therefor caused him to be so indicted and prosecuted after being fully informed and advised that he was not guilty of the crime charged. He alleges that by reason of said indictments and prosecution he was put to large expense, namely, $ 2,000, and loss of time of the value of $ 500, and that he suffered great distress humiliation, anguish, and injury to his reputation, character, and standing, wherefore he asks $ 17,500 damages. Separate trials were demanded by the Fidelity Insurance Company and the Merchants' & Bankers' Insurance Company, and trial had as to the other defendants. The defendants answered separately, admitting the corporate capacity and residence of the companies, and denying generally every other allegation in the petition. The defendant companies and W. A. Wilkin further answered that whatever they or the agents of the companies did in the premises was done after full and careful investigation of all the facts available, in perfect good faith, and upon the advice of counsel that the evidence was amply sufficient to convict said Erb. As a further defense they each allege in substance as follows: That in a suit lately pending A. Brutsche, as plaintiff, sought to recover from this plaintiff, as defendant therein, damages by reason of his (Brutsche's) property having been destroyed by fire set or caused by Erb. That Erb filed an answer therein, and a counterclaim, alleging substantially the same things as to Brutsche that are alleged in this case as to these defendants, and asking damages against Brutsche for this same alleged malicious prosecution. These defendants say that Brutsche was one of the parties engaged in said alleged malicious prosecution, and was, if there is any liability therefor, jointly liable with these defendants as a tort feasor. That this plaintiff, Erb, settled his counterclaim against Brutsche, and received satisfaction in full therefor, and released Brutsche free of liability on account of said prosecution, wherefore these defendants say that said release releases them from all liability on account thereof. In reply the plaintiff admits that he filed a counterclaim, as alleged, against Brutsche, believing at the time that he was a party to the alleged conspiracy; that thereafter he learned, and now alleges, that Brutsche was not a party thereto, and says that Brutsche dismissed his cause of action against this plaintiff, and he dismissed his said counterclaim against Brutsche. John Heater and Philip Kesselring were also made defendants, and answered, denying generally. On the trial, verdict and judgment were rendered in favor of the plaintiff for $ 6,500, and the defendants the German-American Insurance Company, German Insurance Company, and W. A. Wilkin appeal. John Heater and Phillip Kesselring do not appear to prosecute the appeal.

Reversed.

M. W. Beach, Salinger & Korte, and J. C. Cook for appellants.

F. A. Charles, Earl & Prouty, and F. M. Davenport for appellee.

GIVEN J. GRANGER, C. J., not sitting.

OPINION

GIVEN, J.

I.

The record before us is remarkable in that it is unusually voluminous for a case of this kind; yet it is apparent that much of what occurred on the trial has been eliminated as unimportant. Still we have about 230 pages of abstract, emphasized by about 180 pages of argument. Appellants' complaints against the instructions are largely of them as a whole, and the discussion of these complaints is so blended with discussion of facts that we find it difficult to arrive at just what the complaints are. As we understand it, appellants' complaints of the instructions generally are these: That they do not make plain to the jury the questions to be decided by it; that they do not distinguish between actions for malicious prosecution and for false arrest or false imprisonment; and that they are erroneous as to what constitutes malice and want of probable cause, and the application of the proofs to those issues. Specific complaints are made against several of the instructions and against the refusal to submit certain special interrogatories. To understand these complaints, it is necessary that we state in a general way the character of the case. On and prior to the ninth day of September, 1893 plaintiff was the owner of a stock of drugs kept in a store in Coon Rapids, on which stock he held policies of insurance in the defendant companies. About 4 A. M. of that day the goods and building and other buildings were destroyed by fire. The companies, acting upon information received largely from John Heater, refused payment, and defended against suits on the policies on the ground that Erb had been engaged in the illegal sale of intoxicating liquors, that he was at fault for the burning of the property, and that he had contracted, before the fire, to sell the goods. Verdicts were rendered below in those cases in favor of the plaintiff, and appeal taken to this court. While these cases were pending, the defendants, acting together upon information derived largely from John Heater, and upon the advice of counsel, procured the plaintiff to be indicted and tried as alleged. On trial on one indictment he was acquitted, and thereupon the others were dismissed. A. H. McVey, attorney for the companies, acquired the information upon which he advised and the companies acted from John Heater, under an agreement by which Heater was to be compensated. There is a dispute as to what this agreement was, the defendants claiming that is was for an agreed amount for the information that Heater possessed in the form of affidavits, and compensation for further services in looking up further testimony. The plaintiff claims that it was for a certain amount when an indictment was found against him, and an additional amount when he was convicted, and a further sum when the policies and the judgments against the companies were canceled. As to the action of Brutsche against this plaintiff, the contention is whether Brutsche was a joint wrongdoer with the defendants, or either of them, in prosecuting the plaintiff maliciously and without probable cause, and whether the plaintiff had received satisfaction from Brutsche therefor. Plaintiff claims that Brutsche did not participate in the prosecution, and that, when so convinced, he withdrew his counterclaim. There was really no dispute on the trial that defendants acted upon information possessed by them, and upon advice of counsel causing the plaintiff to be indicted and prosecuted. The primary and important question is whether they did so with malice, and without probable cause. Indeed, aside from the questions arising from Brutsche's case, and the amount of damage, if any, this...