Johnson v. Miller

• Decision Date: 15 October 1886
• Citation: 29 N.W. 743,69 Iowa 562
• Parties: JOHNSON v. MILLER AND OTHERS.
• Court: Iowa Supreme Court

69 Iowa 562

29 N.W. 743

JOHNSON

v.MILLER AND OTHERS.

Supreme Court of Iowa.

October 15, 1886.

Appeal from Black Hawk district court.

This is an action for the recovery of damages for an alleged malicious prosecution. The case has once before been in this court. See 63 Iowa, 529;17 N. W. Rep. 34. On that appeal the judgment in favor of plaintiff was reversed, and the cause was remanded. A second trial resulted in a verdict and judgment for plaintiff. Defendants appealed.Boies, Husted & Boies and Hubbard, Clark & Dawley, for appellants.

The court cannot assume a fact in its instructions. Ruter v. Foy, 46 Iowa, 132;Walters v. Chicago, R. I. & P. Ry., 41 Iowa, 76; York v. Wallace, 48 Iowa, 307; Case v. Burrows, 52 Iowa, 146;S. C. 2 N. W. Rep. 1045;Perigo v. Chicago, R. I. & P. Ry., 55 Iowa, 327; S. C. 7 N. W. Rep. 627;State v. Bailey, 54 Iowa, 414;S. C. 6 N. W. Rep. 589.

Where instructions are so contradictory that it is impossible to tell which the jury followed, a new trial will be allowed. Hawes v. Burlington, C. R. & N. Ry. Co., 64 Iowa, 319; S. C. 20 N. W. Rep. 717; citing Hoben v. Burlington & M. R. Ry. Co., 20 Iowa, 562;State v. Hartzell, 58 Iowa, 520;S. C. 12 N. W. Rep. 557.

The question of probable cause rests only on those facts and circumstances which were known to the prosecutor at the time the prosecution was begun, and not upon any which afterwards came to his knowledge. Swaim v. Stafford, 3 Ired. 289;Munns v. Dupont, 1 Amer. Lead. Cas. 213;Galloway v. Stewart, 49 Ind. 156.

W. A. Foster and C. E. Wheeler, for appellee.

It is not necessary that the defendant, in an action for malicious prosecution, should be the originator of the prosecution. It is enough to render him liable for damages that he voluntarily participated in the prosecution, and that it was carried on with his countenance and approbation, if the jury find the other facts necessary to fix his liability. See Stansbury v. Fogle, 37 Md. 369;Clements v. Ohrly, 2 Cockb. & R. 686; Green v. Cochran, 43 Iowa, 544;Weston v. Beeman, 27 Law J. Exch. 57; Churchill v. Siggers, 3 El. & Bl. 937; McWilliams v. Hoban, 42 Md. 56.

The question of probable cause is one of law, when there is no dispute as to the facts. Center v. Spring, 2 Iowa, 393;Shaul v. Brown, 28 Iowa, 37;Burns v. Erben, 40 N. Y. 463;Thaule v. Krekekler, 81 N. Y. 428;Stone v. Crocker, 24 Pick. 81;Burton v. St. Paul, M. & M. Ry. Co., 22 N. W. Rep. 300;Baldwin v. Weed, 17 Wend. 224;Kidder v. Parkhurst, 3 Allen, 393.

In order to make the advice of counsel available as a defense, the defendant must show that he communicated to him all the facts which he knew, or by reasonable diligence could have known, bearing upon the guilt or innocence of the accused, even though the defendants supposed that some of the facts were not material. 1 Hil. Torts, 503; Wicker v. Hotchkiss, 62 Ill. 107;Burris v. North, 64 Mo. 426;Ames v. Rathbun, 55 Barb. 194;Fisher v. Forrester, 33 Pa. St. 501; Hill v. Palm, 38 Mo. 13;Sharpe v. Johnston, 59 Mo. 557;Thompson v. Lumley, 50 How. 105;Fagnan v. Knox, 66 N. Y. 525;Bell v. Pearcy, 5 Ired. 83;Munns v. Dupont, 1 Amer. Lead. Cas. 214; Cooley, Torts, 183; Turner v. Ambler, 10 Q. B. 252; Galloway v. Stewart, 49 Ind. 156.

REED, J.

The plaintiff and all the defendants except S. D. Potter reside in Jones county. Potter is a resident of Greene county. In June, 1874, Potter purchased about 50 head of calves in Jones county, which he drove to his farm in Greene county. The defendant Foreman claimed that four of the number belonged to him, and that they had been stolen from him, and he instituted a suit for their recovery before a justice of the peace in Greene county, and, on the trial, he established his right to them. Potter claimed that he had purchased said calves from plaintiff, and an indictment was subsequently returned by the grand jury, in which he was accused of the larceny of the property; but, upon the trial of the indictment, he was acquitted. He then instituted this suit, alleging that the defendants had conspired together to institute said prosecution, and that it was commenced maliciously, and without probable cause.

1. The first point urged by counsel in argument in this court is that, upon the undisputed facts of the transaction, as shown by the evidence given upon the trial, there was probable cause for the institution of the prosecution, and that the verdict is therefore without support. The question whether there was probable cause for the commencement of the prosecution is what is denominated a mixed question of law and fact. If there are no facts in dispute, the question is for the court; but, if there is a controversy as to the facts, it should be submitted to the jury. Cooley, Torts, 181; Center v. Spring, 2 Iowa, 393.

Plaintiff has always admitted that he sold and delivered to Potter seven of the calves, which the latter drove to Greene county. In October, 1874, Foreman visited Potter's place, and, on his return to Jones county, he informed plaintiff that he had found four calves which had been stolen from him in Potter's possession, and that the latter claimed that he had purchased them from plaintiff, and he demanded payment for them. In a few days afterwards he again called upon him, accompanied by Potter, and the latter stated to plaintiff that the four calves which Foreman claimed (and which he had then recovered in the proceeding before the justice) were of the number of those sold him by plaintiff. In neither of these interviews did plaintiff make any question as to the identity of the calves claimed by Foreman with those sold by him to Potter, and in the last interview he settled with the parties, and gave Potter his note for their value. He, in effect, and perhaps in express terms, admitted that he had in possession, and had sold to Potter, the calves which had been stolen from Foreman; but this admission was based on the representations of Potter as to their identity. In both of the interviews he claimed to have purchased them from a man who was a stranger to him, and who stated that his name was Smith. He stated to them that on the day before he sold the calves to Potter he was in the store of Coppees & Derr, in Olive, and that while there he inquired of the proprietors of the store whether they knew of any cattle for sale, and that the man Smith was in the store at the time, and asked him what kind of cattle he desired to buy, and that he replied that he wanted young cattle; and that Smith then stated that he had five calves that he wanted to sell, and that they were on the commons some distance from the town; and that he then went with Smith, accompanied by his brother, Nelson Johnson, who had gone to the store with him, to where the calves were, and there contracted with Smith for their purchase, and paid him for them; and that Smith agreed to deliver them at a certain pasture, and that he found them in that pasture the next morning, and drove them from there to where he delivered them to Potter. He also stated to them that, when he learned that Foreman was claiming the calves, he went into the neighborhood in which Smith had represented he lived, and inquired for him, but that he had been unable to find him. At his request, Foreman went with him to the store of Coppees & Derr, and these parties stated to them that plaintiff had a conversation with a stranger in the store about the purchase of cattle, and they detailed the transaction substantially as plaintiff had stated, but were unable to fix the time when the transaction occurred. In subsequent conversations, with other of the defendants, plaintiff made the same statement to them, and he informed some of them that, when he drove the calves from the pasture the next morning after the purchase from Smith, Foreman was working in the highway adjoining the pasture, in plain sight of the calves, and not more than 30 or 40 rods from them. In some of these conversations he stated that on the same day on which he made the purchase from Smith he went to the town of Stanwood, and had certain business transactions with parties whose names he gave. On subsequent inquiry, however, the defendant learned that those parties claimed that the transactions which plaintiff claimed were had on the day before he sold the calves to Potter did not take place until nearly two months after that. Other facts incident to the transaction were known to defendants when the prosecution was instituted, but they all bear on the question of the reasonableness of the account given by plaintiff as to how he came into possession of the property, and need not be stated.

When the prosecution was commenced, then, the defendants knew (1) that the property had been stolen by some person; (2) that by the plaintiff's own admission he had the stolen property in his possession soon after the larceny; and (3) that he claimed to have acquired the possession of it by purchase from the man Smith.

That the first two facts, standing alone, would have afforded probable cause for instituting the prosecution, cannot be denied; but it is equally apparent that, if plaintiff's story in explanation of his possession of the property is true, no ground for the prosecution existed. The question, then, whether there was probable cause depends upon whether the facts and circumstances of the transaction, as they were known and understood by the defendants, would have warranted an ordinarily prudent and cautious man in the belief that plaintiff's story as to how he acquired the possession was false.

The answer to the question depends, then, upon the conclusion or deduction which should be drawn from the numerous facts and circumstances of the case, and we think it was the province of the jury to draw that conclusion. The court could not say, as a matter of law, that the story was so unreasonable or improbable as to be unworthy of belief. It was properly left to the jury, and we cannot interfere with their finding.

2. As stated...