Jensen v. Halstead

• Decision Date: 06 February 1901
• Citation: 85 N.W. 78,61 Neb. 249
• Parties: JENSEN v. HALSTEAD.
• Court: Nebraska Supreme Court

61 Neb. 249

85 N.W. 78

JENSEN

v.HALSTEAD.

Supreme Court of Nebraska.

Feb. 6, 1901.

Syllabus by the Court.

1. Verdict of a jury on conflicting evidence will not be disturbed on review.

2. One who, before instituting a criminal prosecution, makes a full, fair, and honest statement to an attorney of all the facts within his knowledge, or which he could have ascertained by the exercise of reasonable diligence, bearing upon the guilt of the accused, and in good faith acts upon his advice, will not be liable in an action for malicious prosecution. But, if he withholds from counsel any material facts within his knowledge, the advice received will afford him no protection.

3. The defendant in an action for malicious prosecution will not be permitted to testify that he related to his counsel, before instituting the criminal prosecution, all the facts and circumstances within his knowledge, as it would be the statement of a mere conclusion, which it is the province of the jury to draw from the entire evidence adduced on the trial.

4. In an action for malicious prosecution it is reversible error to instruct the jury that the information which will justify the making of a criminal complaint against another must be of such a character and obtained from such a source that business men generally, of ordinary care, prudence, and discretion, would feel authorized in acting thereon.

5. The instruction is erroneous which contains conflicting statements of law.

Error to district court, Douglas county; Fawcett, Judge.

Action by Lotta E. Halstead against Jens Jensen. Judgment for plaintiff, and defendant brings error. Reversed.I. J. Dunn, for plaintiff in error.

Chas. W. Haller, for defendant in error.

NORVAL, C. J.

This is an error proceeding from a judgment of the district court of Douglas county in action wherein Mrs. Lotta Halstead was plaintiff and Jens Jensen was defendant. Jensen had caused the arrest of Mrs. Halstead on a charge of malicious destruction of property, of which charge she had, on trial, been acquitted. She thereupon brought an action against him for malicious prosecution, in which she was successful. Some 16 alleged errors, out of the remarkable number of 38 assigned, are insisted upon in the brief of counsel. These, however, can be grouped under more general heads, thus obviating the tediousness of referring to each separately. Several of the alleged errors go to the question of whether there is evidence in the record from which the jury could find that in bringing the criminal prosecution Jensen was actuated by malice, or whether there was on his part want of probable cause. Counsel cite the court to the evidence of the defendant to establish the fact that the jury were not justified in finding there was either malice or probable cause. Unfortunately for counsel, the testimony of plaintiff and defendant was contradictory in many material particulars. We have carefully reviewed the record, and the conclusion is irresistible that if the jury believed plaintiff,--and the verdict would indicate that they did,--rather than defendant, they were justified in finding that he had no probable cause in causing her arrest on the criminal charge, and that in so doing he was actuated by malicious motives. The arrest of plaintiff on the criminal charge grew out of the removal by her of a certain hall rack which had been attached to a house belonging to defendant, in which she was a tenant. It is claimed that she had no legal right to take this hall rack down, and therefore defendant was justified in believing that she acted maliciously in so doing. We do not so conclude. That she had no legal right to take it down, if such be a fact, would not make her act malicious. Neither would the fact alone that she had torn it down without color of right justify him in believing that she acted maliciously. What construction he was warranted in putting upon her acts depended entirely upon her motive in the premises, as disclosed by the evidence. Had the jury believed defendant, it would have been authorized in concluding that she acted maliciously in taking down this rack, and that he was, therefore, justified in causing her arrest. As already stated, evidence was adduced by her which tended to establish the contrary. Therefore we cannot disturb the verdict.

Defendant pleaded as a defense to the cause of action of plaintiff that before instituting the criminal prosecution he had disclosed all the material facts to his counsel, and acted on his advice in bringing the same. Upon the stand he testified to what he stated to his counsel. It is contended that this constituted a defense to the present action, and that the jury should have found for the defendant. If they believed the statements of defendant and his counsel to have been the facts in the case, the jury certainly should have found in his favor. Unfortunately for him, again, what he claimed to be the...