Jackson v. Bell

• Decision Date: 13 April 1894
• Citation: 58 N.W. 671,5 S.D. 257
• Parties: JACKSON v. BELL.
• Court: South Dakota Supreme Court

58 N.W. 671

5 S.D. 257

JACKSON v. BELL.

Supreme Court of South Dakota

April 13, 1894

Syllabus by the Court.

1. In order to relieve a defendant from liability in an action for malicious prosecution, on the ground that he acted on the advice of counsel, it must appear that he made a full and complete statement of all the facts known to him relevant to the prosecution, and was afterwards advised to institute such prosecution, and that he acted on such advice of counsel in good faith, believing the plaintiff to be guilty of the crime with which he was charged.

2. The question of probable cause is a mixed question of law and fact, and, when such a defense is alleged, and evidence has been offered in relation thereto, which is conflicting, its credibility is to be considered and determined by the jury under proper instructions as to what facts, if they exist constitute probable cause; as, when the defendant's belief of the facts relied on by plaintiff to prove a want of probable cause is essential, it is always a question of fact to be submitted to the jury for determination.

3. The circumstances which merely tend to aggravate the ordinary damages which necessarily result from an alleged wrong as the natural consequences of the acts set out in the complaint for a malicious prosecution need not be specially pleaded, and when evidence of injury to feelings has been admitted without objection, an instruction upon such evidence, to the effect that a person who has been charged with a crime, and prosecuted maliciously and without probable cause, may recover for personal mortification or injury to his feelings is not erroneous.

Appeal from circuit court, Spink county; A. W. Campbell, Judge.

Action by Charles M. Jackson against Daniel Bell for malicious prosecution. Judgment for plaintiff, and defendant appeals. Affirmed.

A. B. Melville and F. S. McElherne, for appellant. Sterling & Morris, for respondent.

FULLER J.

This action was instituted and prosecuted to judgment to recover $1,200 damages, alleged to have been sustained on account of a malicious prosecution of plaintiff before an examining magistrate upon a charge of grand larceny, growing out of the following facts, as disclosed by the evidence. Plaintiff, who lives 100 rods from defendant's place of residence, discovered certain cattle, including one bull, upon his premises, and within his door yard, at milking time, on the morning of the 27th day of September, 1890; and, as such cattle were annoying and hooking certain cows which plaintiff kept tied to posts, he drove them into a shed near by, and confined them there. Plaintiff testified that he did not know whose cattle they were, and the evidence shows that he made diligent inquiry, and asked his neighbors if any of their cattle were gone, and told them about the cattle he had taken up. On the afternoon of the same day the defendant caused plaintiff's arrest on a charge of grand larceny of the cattle, and he was taken before an examining magistrate, who resided 14 miles from plaintiff's home. For the purpose of obtaining counsel, a continuance of the hearing for a few days was obtained by plaintiff, and during such time he was, constructively at least, in the custody of the officer. The evidence shows that plaintiff, who was engaged in operating a threshing machine, was required to be absent from his business, and to lose time in preparing to defend against the charge of larceny, and that he incurred expense in employing counsel and in procuring the attendance of witnesses; and plaintiff testified that he spent about two weeks in attending to the matter, and was greatly mortified and injured in his feelings, by being placed under arrest and taken into the custody of the sheriff. Upon the day to which the hearing was continued the magistrate dismissed the case, and the defendant was discharged. The evidence offered on the part of the defendant shows that the cattle were placed in a corral on his premises the evening before they were taken up by plaintiff; that the fence around this yard or corral was composed of three wires, with posts sixteen feet apart; that on that evening, just before retiring for the night, defendant made a careful examination, and found all the cattle in the yard, the fence in good condition, and the gates securely fastened; that in the morning four head of the cattle were gone, and the wire and stick by which one of the gates was fastened were misplaced; that, after looking around the premises for the cattle, defendant sent a man who was in his employ up to the plaintiff's stable, to see if the cattle were there; that when the man returned he informed defendant that the cattle were up there in an old shed. Plaintiff testified that he then went to an attorney at law, and stated the case fully and fairly, and was advised to do just what was done; that by causing the arrest of plaintiff he did not act maliciously, and believed that plaintiff had stolen the cattle. The testimony further shows that the identical cattle taken up by plaintiff had frequently escaped from defendant's pasture, and were at the time fastened together with ropes, to prevent them from doing so, although defendant testified that they had never gotten out of the yard in which they were placed the evening before they were found in plaintiff's possession. It also appears from the record that the relations existing between plaintiff and defendant were, and for a number of years had been, unfriendly, and that the trouble between them prior to the arrest of plaintiff had resulted in more or less litigation. After testifying that he had put the ropes on the cattle to keep them from getting out of the pasture, the defendant was interrogated as follows: "Q. Were these breachy cattle? A. It was a poor fence. Q. These were more breachy than the others? A. I don't know. I had ropes on one of the cows. *** I swore out the complaint for a search warrant. I did not know how to get the cattle otherwise. I left it to Mr. McElherne. I think I testified concerning this matter in a case at Mellette against me. Q. Did you state in your testimony in that case at Mellette that these cattle were in the habit of getting out, and that you had been experimenting with your fence there, by moving the wire up and down? A. I think I did. I think very likely it would be the same now that I experimented. I go every night to examine that fence, and walk around the yard regular,--clear around it. *** As a matter of fact, they never got out of that fence. They could not. The fence they got through was the pasture fence." There was a verdict for plaintiff, and judgment was entered thereon for $150, together with the costs of the suit. Defendant appeals, and asks for a reversal of the judgment.

The assignments of error relate to the court's charge to the jury, and it is urged by counsel for appellant that the court should have decided as a matter of law that there was probable cause for the arrest of plaintiff; and that it was error to submit certain special findings to the jury, which with the answers, are as...