Huber v. Zeiszler

• Decision Date: 25 July 1917
• Citation: 164 N.W. 131,37 N.D. 556
• Court: North Dakota Supreme Court

164 N.W. 131

37 N.D. 556

FREDERICK HUBER v. GEORGE ZEISZLER

Supreme Court of North Dakota

July 25, 1917

Appeal from the judgment of the District Court of Mercer County, J M. Hanley, Judge.

Affirmed.

Judgment affirmed, with costs.

Langer & Nuchols and C. F. Kelsch, for appellant.

It is true that malice is a question for the jury, and it may be proved by facts or inferred from the relation of the parties the defendant's acts and ill will manifested toward plaintiff, or it may be inferred for want of probable cause. It is further conceded that legal malice will sustain an action for malicious prosecution, the only difference being the degree of proof required. But appellant contends that plaintiff has failed to prove these facts or conditions. Kolka v. Jones, 6 N.D. 461, 66 Am. St. Rep. 615, 71 N.W. 558; Merchant v. Pielke, 10 N.D. 48, 84 N.W 574, and authorities cited; Wuest v. American Tobacco Co. 10 S.D. 394, 73 N.W. 903; Krause v. Bishop, 18 S.D. 298, 100 N.W. 434; Van Meter v. Bass, 18 L.R.A.(N.S.) 49, and note, 40 Colo. 78, 90 P. 637; Ross v. Hixon, 46 Kan. 550, 12 L.R.A. 760, 26 Am. St. Rep. 123, 26 P. 955; Bauer v. Clay, 8 Kan. 585.

"The fact that defendant was bound over to the district court is prima facie evidence of the existence of probable cause." Such is the law in most jurisdictions. Ross v. Hixon, 46 Kan. 550, 12 L.R.A. 760, 26 Am. St. Rep. 123, 26 P. 955; Bauer v. Clay, 8 Kan. 585; Ganea v. Southern P. R. Co. 51 Cal. 140; Diemer v. Herber, 75 Cal. 287, 17 P. 205; Ash v. Marlow, 20 Ohio 119.

"All instructions to the jury, whether given in writing or orally, shall be deemed excepted to." Comp. Laws 1913, § 7621.

The court should instruct on all appropriate matters, and the court is not relieved from this duty by failure of the parties to make requests. 38 Cyc. 691 (B); York Park Bldg. Asso. v. Barnes, 39 Neb. 834, 58 N.W. 440; Moline Plow Co. v. Gilbert, 3 Dak. 239, 15 N.W. 1.

Appellate courts will reverse and vacate judgment on the sole ground that the verdict is so excessive as to indicate passion, bias, or prejudice on the part of the jury. Merchant v. Pielke, 10 N.D. 48, 84 N.W. 574; Smith v. Times Pub. Co. 178 Pa. 481, 35 L.R.A. 819, 36 A. 296, and cases cited.

H. L. Berry and Hyland & Madden, for respondent.

In malicious prosecution cases it is a question for the jury whether the disclosure to counsel is in good faith. Wren v. Rehfield, 37 S.D. 201, 157 N.W. 323; Snyder v. Mount, Iowa , 159 N.W. 634; Wells v. Parker, 76 Ark. 41, 88 S.W. 602, 6 Ann. Cas. 259; Merchant v. Pielke, 10 N.D. 48, 84 N.W. 574.

It is true that appellant threatened his wife until he made her say that Huber had intercourse with her; then it is evident that defendant must have known that there was no foundation for the prosecution, and the statement to his counsel was neither complete nor accurate, and no defense to the action. Comeford v. Morwood, 34 N.D. 276, 158 N.W. 258; Wells v. Parker, 76 Ark. 41, 88 S.W. 602, 6 Ann. Cas. 259.

The defendant in an action for malicious prosecution who seeks to rely upon the advice of counsel as a defense must show that he communicated to such counsel all of the facts within his knowledge. Merchant v. Pielke, 10 N.D. 48, 84 N.W. 574.

The binding over of plaintiff is conclusive of no fact against him in such actions. Wells v. Parker, 6 Ann. Cas. 259, and note, 76 Ark. 41, 88 S.W. 602; Bechel v. Pacific Exp. Co. 65 Neb. 827, 91 N.W. 853.

The question of whether the prosecution was malicious or not is, as a general rule, one for the jury. Snyder v. Mount, Iowa , 159 N.W. 634; 26 Cyc. 109.

Where the jury finds that the criminal action was instituted without probable cause, it might and naturally would draw the inference that the defendant was actuated by malice in causing plaintiff's arrest and prosecution for an alleged crime, which there was no probable cause or reason to believe plaintiff had committed. Kolka v. Jones, 6 N.D. 461, 66 Am. St. Rep. 615, 71 N.W. 558; Comeford v. Morwood, supra.

Error in failing to instruct fully upon a particular issue is waived by failure to request additional instructions. Quinn v. Chicago, M. & St. P. R. Co. 23 S.D. 126, 22 L.R.A.(N.S.) 789, 120 N.W. 884; Connell v. Canton, 24 S.D. 572, 124 N.W. 839; Belknap v. Belknap, 20 S.D. 482, 107 N.W. 692; Lunschen v. Ullom, 25 S.D. 454, 127 N.W. 463; Landis v. Fyles, 18 N.D. 587, 120 N.W. 566; Carr v. Minneapolis, St. P. & S. Ste. M. R. Co. 16 N.D. 217, 112 N.W. 972.

The question of the false testimony before the magistrate was squarely put before the jury by proper instructions. Casey v. First Nat. Bank, 20 N.D. 211, 126 N.W. 1011.

In fixing the damages it must clearly appear that the jury went beyond the exercise of a sound judgment and discretion before its verdict will be held excessive. Merchant v. Pielke, supra; Rule v. McGregor, 115 Iowa 323, 88 N.W. 814; Fiola v. McDonald, 85 Minn. 147, 88 N.W. 431; Neys v. Taylor, 12 S.D. 488, 81 N.W. 901.

GRACE, J. ROBINSON, J. (concurring).

OPINION

GRACE, J.

The action is one for malicious prosecution. The complaint alleges that on the 17th day of July, 1915, the defendant maliciously and without probable cause falsely charged the plaintiff herein with the crime of adultery, before a justice of the peace within and for the county of Mercer, and also swore to a criminal complaint before such justice, charging the same crime. Such complaint further shows that such charge was false, and that the defendant knew it was false at the time he made the complaint. The plaintiff further shows his arrest by reason of the making of such complaint and the issuance of such warrant. That, when the preliminary hearing was had, the plaintiff was bound over to the district court, and was tried by a jury, by whom he was acquitted. Plaintiff alleges damages by reason of money expended in employing counsel to defend him in said action, and the payment of witness fees, and alleges general damages in the sum of $ 7,500, and makes demand for judgment in the sum of $ 8,350.

The answer admits the arrest of the plaintiff by reason of the warrant, and states further by way of defense the binding over of the plaintiff upon the preliminary hearing. Defendant alleges further by way of defense that he had good grounds to believe the plaintiff guilty of the crime charged, and in the manner charged in the complaint. Further by way of defense defendant alleges that, before the filing of such complaint and the issuance of such warrant, defendant consulted counsel and stated to them fully and fairly all facts and circumstances known to him in relation to such charge, and that such attorneys advised the defendant that he had probable cause for commencing such criminal proceedings.

Trial was had in the district court of Mercer county of all the issues in the case, and the jury returned a verdict in favor of the plaintiff for the sum of $ 1,850, and the costs and disbursements of the action taxed at $ 170.90, in all $ 2,020.90. Motion for a new trial was made, which was based upon the alleged passion and prejudice of the jury and the excessiveness of the verdict, and upon other grounds. An order was made denying the motion for a new trial, and judgment was entered. From the order denying a new trial and from the judgment the defendant appeals and assigns four specifications of error. First, that the court erred in denying the motion of the defendant for a new trial of the action, and in refusing to order a new trial of the action. The granting or refusing to grant a new trial rests largely in the discretion of the trial court, and unless there is plain abuse of such discretion, its order in such matter will not be disturbed. There appears to be no abuse of such discretion in this case. As to the second assignment of error, which is that the damages awarded by the jury are so excessive as to appear to have been given under the influence of passion and prejudice, we conclude there is no merit in such assignment of error. There is nothing in the record to indicate any passion or prejudice on the part of the jury and the verdict is not excessive under all the circumstances of the case. As to the third assignment of error, which claims that the evidence is insufficient to justify the verdict, we are of the opinion that the verdict is amply sustained by the evidence in the case. There was sufficient evidence in the case to support the allegations of the complaint, and there was conflicting evidence as to certain material matters connected with the case; and it was the province of the jury to pass upon all disputed questions of fact presented to them, which they did, and returned a verdict in favor of the plaintiff, which is amply supported by the testimony in the case. The fourth assignment of error, relating to the failure of the court to instruct the jury that the fact that the plaintiff had been held to answer the charge of the criminal action in district court after a preliminary hearing before a justice of the peace was prima facie evidence of the guilt of the plaintiff, is also without merit. It does not appear that the...