Hetfield v. Mortimer

• Decision Date: 04 October 1926
• Docket Number: No. 59.,59.
• Parties: HETFIELD v. MORTIMER
• Court: Michigan Supreme Court

236 Mich. 214

210 N.W. 326

HETFIELD

v.MORTIMER

No. 59.

Supreme Court of Michigan.

Oct. 4, 1926.

Error to Circuit Court, Huron County; Samuel G. Houghton, Judge.

Action by Raymond W. Hetfield against William O. Mortimer. Judgment for plaintiff, and defendant brings error. Reversed, without new trial.

Argued before the Entire Bench, except CLARK, J. Paul Woodworth, of Bad Axe, and Walsh & Walsh, of Port Huron, for appellant.

Watson Beach and Wilbur J. Beach, both of Bad Axe, and Henry Baird, of Port Huron, for appellee.

FELLOWS, J.

This is an action for malicious prosecution. Since the case reached this court, defendant has died and his death has been suggested upon the record. As the cause of action does not survive at common law (1 C. J. 202) or by statute (section 12383, C. L. 1915), a reversal puts an end to the case. The judgment, after reduction by the trial judge, is substantial; the record is voluminous and has been read with care, having in mind the serious effect to plaintiff's claim which must follow a reversal.

Plaintiff was secretary-treasurer of the Federal Lumber Company, a Michigan corporation. He kept the books of the company, collected money due the company, and was generally active in its management. Defendant was a stockholder in the company. He and close business associates had acquired the controlling stock in the company. On January 15, 1921, plaintiff was relieved of his office in the company and no longer had any charge of its affairs. Later, defendant and his associates had negotiations with plaintiff, which resulted in plaintiff's selling his stock and a settlement being reached of plaintiff's account with the company. The extent defendant participated in these negotiations is somewhat in dispute. Some time after this, defendant attempted to collect an account appearing on the books of the company kept by plaintiff against one Urban of between $400 and $500 and found that the account had been paid by Mr. Urban in August, 1920, and that he held the receipt of the company signed by plaintiff. This payment did not appear in the Urban account in the ledger, nor in the cash book of the company. There was also another small account of one Burge, which had been adjusted by plaintiff, and which did not appear to have a credit on the books of the company. Defendant took the matter up with the assistant prosecuting attorney of the county.

We do not follow defendant's contention that it should be said as matter of law that he fully and in good faith submitted to the assistant prosecuting attorney all the facts so as to fully justify him in starting the prosecution, or to make the act of bringing the criminal proceeding the act of the assistant prosecuting attorney, nor do we follow plaintiff's suggestion that his failure to have a complete audit of the books before starting the criminal proceedings establish, as matter of law, want of probable cause. The complaint signed by defendant evidently was intended to charge and did charge a violation of section 15310, C. L. 1915. Without quoting it, in effect it charged defendant, as agent of the Federal Lumber Company, with receiving the sum of, to wit, $500 and converting it to his own use. A bill of particulars was demanded by the attorneys for plaintiff in the criminal proceedings. One was filed by the prosecution, and it fairly appears that defendant furnished the information to make it up. It contained the Urban matter and other items. Upon a hearing, plaintiff was discharged by the examining magistrate. While his reason does not clearly appear and may not be important, it may be inferred that defendant established that the money received from Urban although not appearing on the books, was, as matter of fact, actually deposited in the bank to the credit of the lumber company. Later, a cash audit by a certified accountant was had by defendant to which we shall presently refer.

Upon the trial of the instant case, defendant insisted in his defense (1) that he had probable cause for making the complaint; (2) that he fully and fairly stated the material facts to the assistant prosecuting attorney, who caused the warrant to be issued; and (3) that plaintiff in fact was guilty of embezzlement of funds of the company. Upon the third defense the court instructed the jury:

‘The defense that Hetfield was actually guilty notwithstanding his discharge by the justice, requires the producing to you by the defendant of proof of that character and sufficiency as has satisfied you beyond reasonable doubt of Hetfield's guilt, the same as if he was on trial before you in the criminal case, and if you have any reasonable doubt of Hetfield's guilt of embezzlement and larceny of money of the Federal Lumber Company, the defense of guilt of Hetfield must fail and you will disregard it.’

This instruction was erroneous. In a civil case, one holding the affirmative of an issue is not bound to establish it beyond a reasonable doubt. Peoples v. Evening News Association, 51 Mich. 11, 16 N. W. 185, 691;Hoffman v. Loud, 111 Mich. 156, 69 N. W. 231;Barrett v. Connecticut Fire Ins. Co., 195 Mich. 209, 161 N. W. 916. Plaintiff's counsel concede, and properly so, as the authorities cited establish, that this instruction was erroneous. But they insist that it was without prejudice because they claim that the court should have instructed the jury that want of probable cause was established as matter of law, and they further claim...