Gladfelter v. Doemel

Decision Date07 January 1958
Citation2 Wis.2d 635,87 N.W.2d 490
PartiesElmer GLADFELTER, Respondent, v. Walter G. DOEMEL, Appellant.
CourtWisconsin Supreme Court

Jansen & Wallace, Oshkosh, Lehner & Lehner, Princeton, for appellant.

Henry P. Hughes, Oshkosh, Herbert S. Humke, Sheboygan, of counsel, for respondent.

CURRIE, Justice.

The defendant advances the following contentions on this appeal:

(1) That he made a full and fair disclosure of all the facts within his knowledge to the district attorney and signed the criminal complaint against the plaintiff in reliance upon the advice of such district attorney, thereby establishing probable cause as a matter of law.

(2) That the defendant had probable cause to believe the plaintiff guilty as a matter of law.

(3) That the trial court committed prejudicial error in admitting evidence relating to Oshkosh Poultry Products, Inc., and the separate legal proceedings instituted by plaintiff against the defendant with respect to such corporation.

(4) That the damages awarded to the plaintiff are excessive.

In the case of Elmer v. Chicago & N. W. R. Co., 1950, 257 Wis. 228, 231, 43 N.W.2d 244, this court enumerated the six essential elements necessary to establish a cause of action for malicious prosecution. Two of such elements are malice on the part of the defendant in instituting the prior proceedings against the plaintiff, and want of probable cause for instituting the same.

The burden of proof is upon the plaintiff to establish all six elements; and, if he fails with respect to any one of them, the defendant prevails. There is a strong reason of public policy for thus making it rather onerous for a person to successfully maintain an action for malicious prosecution. This is well stated by the Colorado supreme court in Montgomery Ward & Co. v. Pherson, 1954, 129 Colo. 502, 272 P.2d 643, 646, as follows:

'It is for the best interests of society that those who offend against the laws of the state shall be promptly punished, and that any citizen who has reasonable grounds to believe that the law has been violated shall have the right to cause the arrest of the person whom he honestly and in good faith believes to be the offender. For the purpose of protecting him in so doing, it is the generally established rule that if he has reasonable grounds for his belief, and acts thereon in good faith in causing the arrest, he shall not be subjected to damages merely because the accused is not convicted. The rule is founded on the grounds of public policy in order to encourage the exposure of crime.'

In further keeping with this public policy, if the defendant in a malicious prosecution action has instituted a criminal proceeding against the plaintiff upon the advice of counsel after making a full and fair statement of the facts within the defendant's knowledge, honestly believing the plaintiff to be guilty, this affords the defendant a complete defense as a matter of law. Brinsley v. Schulz, 1905, 124 Wis. 426, 102 N.W. 918; King v. Apple River Power Co., 1907, 131 Wis. 575, 111 N.W. 668; Smith v. Federal Rubber Co., 1920, 170 Wis. 497, 175 N.W. 808; and Elmer v. Chicago & N. W. Ry. Co., 1952, 260 Wis. 567, 51 N.W.2d 707. The advice of prosecuting attorneys affords the same cloak of protection as does advice of private practitioners. Prosser on Torts (2d ed.), p. 655, sec. 98; and annotation in 10 A.L.R.2d 1215.

The authorities are in dispute as to whether this defense of fair disclosure and acting upon advice of counsel goes to the issue of probable cause or that of malice, or both. See annotation 10 A.L.R.2d 1215, at page 1260 et seq., secs. 16, 17, 18, and 19. Cf. Smith v. Federal Rubber Co., supra, in which it was held that such defense related to the issue of probable cause; and Elmer v. Chicago & N. W. Ry. Co., 1952, 260 Wis. 567, 51 N.W.2d 707, which declared it went to both the issues of probable cause and malice.

The issue of probable cause is one of law for the court while that of malice is one of fact for the jury. 1 Harper and James, The Law of Torts, p. 319, sec. 4.5. However, it is only where the material facts are undisputed that a court can pass upon the issue of probable cause without aid of a jury. Where the facts are in dispute, the issue of probable cause then becomes a 'mixed one of law and fact', and is submitted to the jury to decide under proper instructions from the court as to the law. Prosser on Torts (2d ed.), p. 658, sec. 98; and Elmer v. Chicago & N. W. Ry. Co., 1950, 257 Wis. 228, 232, 43 N.W.2d 244.

The fact, that the defendant in a malicious prosecution action did make a fair disclosure to an attorney and institute the prosecution upon his advice, undoubtedly tends to negative malice. However, where a trial court is faced with the problem of whether to direct a verdict for the defendant in such a situation, on the ground that such fair disclosure and reliance upon advice of an attorney establishes probable cause as a matter of law, the court is not concerned with whether the disclosure and reliance upon advice of counsel also tends to negative malice. In considering such question of whether to direct a verdict, the court must review the evidence to see if there is any which affords a reasonable basis for inferring malice. If there is no evidence upon which a jury might base a finding of malice, and the facts are not in dispute that a full and fair disclosure was made to an attorney and the prosecution instituted upon his advice, then it is the duty of the court to direct a verdict for the defendant. Smith v. Federal Rubber Co., supra; and Elmer v. C. & N. W. Ry. Co., 1952, 260 Wis. 567, 51 N.W.2d 707.

The reason why a verdict cannot be directed in favor of the defendant on the issue of fair disclosure and reliance upon the advice of counsel, where there is evidence present from which a jury might infer malice, is because malice destroys such defense. 1 Harper and James, The Law of Torts, p. 322, sec. 4.6, and 3 Restatement, Torts, pp. 426, 427, sec. 668, comment h. A person instituting a criminal prosecution is actuated by malice if he is found to have acted chiefly from motives of ill will, or if his primary purpose was something other than the social one of bringing an offender to justice. Prosser on Torts (2d ed.), p. 659, sec. 98. The Restatement avoids the use of the word 'malice' entirely in defining the elements of a cause of action for malicious prosecution, and substitutes therefor 'if the proceedings were initiated * * * primarily because of a purpose other than that of bringing an offender to justice'. 3 Restatement, Torts, p. 382, sec. 653. Statements appearing in court opinions which deal with the defense of fair disclosure and reliance upon advice of an attorney, that the defendant must have sought or relied upon such advice in good faith, or that the defendant must have honestly believed the plaintiff to be guilty, in order to avail of such defense, are the equivalent of stating that there must have been an absence of malice.

A jury cannot base a finding of malice upon speculation or conjecture. In order to sustain such a finding there must be some positive evidence in the record from which a jury may reasonably infer that the defendant instituted the prosecution for some purpose other than bringing an offender to justice. In the instant case we deem there was ample credible evidence present to sustain the jury's finding that the defendant was actuated by malice.

On the morning of August 17, 1956, Stauffer, the accountant, and defendant's son, who was the bookkeeper of the Oshkosh Storage Company, went to the district attorney and presented to him facts which pointed to the plaintiff as being responsible for the $75 shortage. The district attorney was noncommittal as to what he proposed to do except to state that he wanted to talk the matter over with the plaintiff. A letter addressed to the plaintiff was then dictated by the district attorney to his secretary which requested that the plaintiff call at the district attorney's office to discuss the matter. The defendant, who had been absent from the company office that morning, returned in the afternoon and was apprised by Stauffer and Doemel, Jr., of what had transpired. The defendant then went to see the district attorney. When the defendant found out that the district attorney proposed to send the letter to the plaintiff, the defendant informed the district attorney that he did not want this to be done and demanded that a warrant issue. The district attorney then directed his secretary to tear up the letter to the plaintiff which in the meantime had been typed ready to send. This incident alone is enough to support the jury's finding of malice.

Further evidence of malice is afforded by the litigation between the plaintiff and defendant arising out of the Oshkosh Poultry Products, Inc. This latter corporation had been incorporated in 1953 with a paid in capital stock of $9,000. A Mr. and Mrs. Hummel were minority stockholders who had invested $1,500 in the enterprise while the defendant and his family had contributed the remaining $7,500 of capital. This corporartion operated for only two weeks and then ceased operations and continued dormant. Shortly after the plaintiff left the employ of the Oshkosh Storage Company he went to Mrs. Hummel and purchased six shares of her stock for $1 per share. The defendant, as president of the corporation, refused to sign a new stock certificate issued to the plaintiff for such six shares, and the plaintiff instituted court...

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