Govaski v. Downey

• Decision Date: 22 May 1894
• Citation: 59 N.W. 167,100 Mich. 429
• Court: Michigan Supreme Court
• Parties: GOVASKI v. DOWNEY ET AL.

59 N.W. 167

100 Mich. 429

GOVASKI v. DOWNEY ET AL.

Supreme Court of Michigan

May 22, 1894

Error to circuit court, Wayne county; George Gartner, Judge.

Action by August Govaski against John B. Downey and the Wabash Railway Company for malicious prosecution. The court directed a verdict for defendants, and plaintiff brings error. Affirmed in part, and reversed in part.

Elbridge F. Bacon and Harlow P. Davock, for appellant.

Alfred Russell, for appellees.

LONG J.

This is an action for malicious prosecution. The case was tried before a jury, and verdict found in favor of the defendants. Plaintiff brings error.

It appears that on July 19, 1892, the defendant Downey made a complaint in writing before one of the police justices of the city of Detroit, charging the plaintiff with the larceny of a wheelbarrow, the property of the defendant railroad company. The warrant was issued by the police justice, and the plaintiff, while not actually arrested was brought before the justice, and answered the complaint and upon trial was discharged. Upon the trial of the case the court below instructed the jury that there was nothing to connect the railroad company with the complaint made by Downey; and, also, that there was nothing to show that Downey did not honestly and fairly submit the matter to the justice or that he was actuated by malice. The facts, as they appeared upon the trial by the testimony of the plaintiff and his witnesses, are as follows: That on the 16th day of July, 1892, the plaintiff borrowed a wheelbarrow of the night watchman of the railroad company, and said that he would return it in the morning; that he did return it as agreed; that, on the 18th, Mr. Hill, who was the general freight agent of the railroad company, sent for him, and asked him what he had done with the wheelbarrow; that he replied that he had borrowed it from the night watchman (Mr Hoeflein), and returned it in the morning; that it was now in the warehouse, when Mr. Hill said, "If you don't bring that wheelbarrow back again by Monday noon, you will be in trouble;" that he worked until Monday, when Mr. Hill sent him the order of discharge from the service of the company; that, when he went out of Hill's office on the 18th, defendant Downey was there, and he told Downey that he brought the wheelbarrow back, and that it was in the warehouse; that Downey went with him to the warehouse, and he pointed out the wheelbarrow which he had returned. Plaintiff also testified to his arrest and discharge by the police court. Mr. Hoeflein testified that he was the night watchman that he saw the plaintiff bring the wheelbarrow back, and that he told Mr. Hill of that fact, when Hill said, "Well, it is all right; the wheelbarrow ain't here;" that Mr. Hill at that time was local freight agent for the railroad company, and had charge of all matters concerning the depot, and charge of the company's property. The defendant called the police justice, who testified that defendant Downey came before him on July 19, and presented the facts against the plaintiff. The police justice said further: "I examined Downey at the time, and determined to issue the warrant against Govaski. I made that determination upon my own responsibility, based upon the statements of Downey made to me." Upon cross-examination, he was asked to state what facts Downey stated to him at that time before the warrant was issued, and in answer said: "My recollection is that he stated to me that the wheelbarrow was the property of the Wabash Railroad Company; that he was special agent for the company; that he had learned that the defendant (Govaski) had got a wheelbarrow, and that he had seen him in the presence of some one else, and accused him of taking it, and that Govaski admitted that he had taken it, and Downey gave him a couple of days to return it, and he had not returned it." Andrew Sine was called as a witness upon the part of the defendant, and testified that he was the day watchman of the defendant company, and that Govaski took the wheelbarrow away, and had never returned it; that he stated to Downey on July 16th that it had not been returned. Another employe of the defendant company testified that the plaintiff took the wheelbarrow away, and that he notified Mr. Hill of the fact. Mr. Hill testified that, learning that the wheelbarrow had been taken away, he sent for plaintiff, and told him he must return it, or he would have trouble, and it must be returned within 48 hours; that Downey was present at the time of this talk. Mr. Hill further testified that after that he saw the witness Hoeflein, and was told by him that plaintiff had returned the wheelbarrow; that Downey was not present at that conversation, but that he told Downey what Hoeflein had said, and this was the same day he had the talk with Hoeflein; that he thereafter discharged the plaintiff from the employ of the railroad company. The police officer who had the warrant testified that he notified the plaintiff to appear before the justice, and that plaintiff appeared at the time he was notified to be there. Defendant Downey testified that he was a watchman for the defendant company at the time of this occurrence, and was told, July 16th, by the foreman of the warehouse that he had lost a wheelbarrow, and could not find it; that he inquired for it, and found that the plaintiff had taken it home the night of the 14th; that he went to the freight agent (Mr. Hill), and stated the case to him, who sent a...