Granteer v. Thompson

• Decision Date: 09 April 1926
• Docket Number: 36723
• Citation: 208 N.W. 497,203 Iowa 127
• Parties: ORVILLE GRANTEER, Appellee, v. PETER THOMPSON, Appellant
• Court: Iowa Supreme Court

208 N.W. 497

203 Iowa 127

ORVILLE GRANTEER, Appellee, v. PETER THOMPSON, Appellant

No. 36723

Supreme Court of Iowa, Des Moines

April 9, 1926

REHEARING DENIED FEBRUARY 16, 1927.

Appeal from Shelby District Court.--EARL PETERS, Judge.

Action for malicious prosecution. Verdict for the plaintiff, and the defendant appeals.

Reversed.

White & White, for appellant.

M. B Bailey and Thomas H. Smith, for appellee.

FAVILLE J. EVANS, STEVENS, ALBERT, and MORLING, JJ., concur. DE GRAFF, C. J., and VERMILION, J., dissent.

OPINION

FAVILLE, J.

Appellee is a minor, and at the time of the transaction involved in this case was about seventeen years of age. He lived with his father on a farm adjoining that of appellant. At that time, appellant's cattle were in a pasture adjoining a field of appellee's father's which was in corn. The places were separated by a wire fence. About noon on July 27, 1922, a son of appellant's discovered one of appellant's cows lying down in the pasture, with an injury to her leg. The injury is described as a clean-cut wound on the left hind leg through the skin and two of the large tendons that run along back of the bone. Shortly afterwards, appellant made a search around the pasture fence. In so doing, he discovered cattle tracks in the adjacent cornfield. He discovered where there had evidently been a hole in the fence, by a ravine, or draw, running in a westerly direction from the pasture into the cornfield, which appeared to have been recently mended. He failed to discover any evidences of blood on any of the wires around the pasture at any place. The next morning, he made another examination, and discovered evidences of human tracks, leading eastward from the fence a distance of about 76 steps from the hole in the fence to a pool of blood in his pasture field. He failed to discover any signs of blood near the fence. He summoned a neighbor, who went with him and assisted in making an examination of the situation in and about the premises. They discovered tracks of a person leading from the fence into the pasture of appellant to the spot where the pool of blood had been found, and a returning track from said place to the fence. There was no blood between the fence and the said pool of blood, nor was there evidence of blood or hair upon the wires of the fence. The parties discovered tracks in the cornfield of two different sizes, one smaller than the other. The tracks leading to the pool of blood in the pasture were apparently made by a number nine shoe. The evidence in behalf of appellee is that he wore a number eight shoe, although there is evidence tending to show that he testified at the preliminary hearing that he wore a number nine shoe. A veterinarian was called, who examined the animal, and who expressed to appellant his opinion that the wound on the cow had been caused by some sharp instrument. Thereafter, appellant, with his neighbor, called upon the county attorney, and told him what he had discovered, and that he suspected appellee of having injured his cow. The county attorney drew a preliminary information, and appellee was arrested and brought before a committing magistrate, where he had a hearing, at which he appeared in person and by counsel. The hearing was conducted in behalf of the state by the county attorney, and appellee was bound over to the grand jury on the charge of malicious injury to an animal. Thereafter, the grand jury returned an indictment against appellee, charging him with said offense, and he was subsequently tried in the district court and acquitted. Thereupon this action was instituted.

I. The first question that confronts us is the ruling of the trial court upon appellant's motion for a directed verdict. In Wilson v. Lapham, 196 Iowa 745, 195 N.W. 235, we said:

"The absence of any conflict in the evidence on the issues of malice and want of probable cause imposed upon the court the duty of determining these as questions of law. Jenkins v. Gilligan, 131 Iowa 176, 108 N.W. 237; Erb v. German Am. Ins. Co., 112 Iowa 357, 83 N.W. 1053; Parker v. Parker, 102 Iowa 500, 71 N.W. 421."

In most jurisdiction, the proof of the obtaining of advice of counsel before instituting the criminal proceeding goes to the question of probable cause. 38 Corpus Juris 428. In this state, we have recognized the rule (Wilson v. Lapham, supra) that:

"If one about to instigate a criminal prosecution consults an attorney, and makes a full and fair statement of the facts to him, and such attorney advises a criminal prosecution, based upon such a statement, his advice may be relied upon as a defense to a subsequent action for malicious prosecution. Necker v. Bates, 118 Iowa 545, 92 N.W. 667; Wilson v. Thurlow, 156 Iowa 656, 137 N.W. 956; White v. International Textbook Co., 144 Iowa 92, 121 N.W. 1104; Parker v. Parker, supra; Pierce v. Doolittle, 130 Iowa 333, 106 N.W. 751. We said, in Wilson v. Thurlow, supra, that: 'Advice of an attorney, to constitute a good defense, must be based on a full and fair statement of the facts within defendant's knowledge, and the advice must have been acted on in good faith, and with the belief that there was good cause for the prosecution.'"

In the instant case, the undisputed evidence shows that appellant went before the county attorney and made disclosure to him of the facts in his possession. No fair question of dispute arises but that said disclosure was a full, complete, and fair statement of all of the facts in possession of appellant. The point is urged, however, that the county attorney did not advise the instigation of a criminal proceeding by the filing of a preliminary information, and that appellant did not act upon the advice of the county attorney in this matter. The testimony of the county attorney in respect to said matter is as follows:

"I suggested that I didn't think the boy would run away, and that the only advantage of having a preliminary hearing before a justice of the peace was to put a man charged with crime under bond, so he could not get away, and suggested that, therefore, there wasn't any reason why the matter would have to be handled that way, and we could wait until the grand jury came, and the grand jury could investigate it, and in the meantime we could be investigating the size of the shoes worn by the father and son and members of the Granteer family, and probably determine which one of them had been down there in that pasture; and Mr. Peterson insisted again, I think several times, that he knew it was the boy, because the boy had done those other things, as he claimed. There was something said about malicious prosecution, and Mr. Thompson's story on the witness stand yesterday has recalled to me, in that connection, we were talking about waiting for the grand jury. I said to him or to them that then, if the matter was taken up in that way, there could not be any chance of a damage suit, because the grand jury would call the witness, and there would be no complaint filed by the individual; and we talked the matter back and forth in that manner, and Mr. Peterson, as I say, kept insisting that it was the boy that had done it; and I then said, in substance, to Mr. Thompson, 'Well, do you want to file an information?' and he said that he did; so I said that I would prepare one, if he wanted to sign one; and as I recall it now,--I might be mistaken about the circumstances,--as I recall it, we were then at the office, and I went to my blank filing case, and didn't have a blank information; and we came over, I think, to the justice's office, and there I obtained one, and filled it in with pencil."

When this statement is fairly construed, it cannot be held that appellant was not fully warranted in filing the information under this statement by the county attorney. It is true that the neighbor who was with him appears, from the...