Josselyn v. McAllister

• Court: Michigan Supreme Court
• Writing for the Court: Campbell, Ch. J.
• Citation: Josselyn v. McAllister, 22 Mich. 300 (Mich. 1871)
• Decision Date: 05 April 1871
• Parties: Homer R. Josselyn v. George L. McAllister

22 Mich. 300

Homer R. Josselyn v. George L. McAllister

Supreme Court of Michigan

April 5, 1871

Heard January 5, 1871 [Syllabus Material] [Syllabus Material]

Error to Hillsdale circuit.

This was an action on the case brought by George L. McAllister in the circuit court for the county of Hillsdale against Homer R. Josselyn, for false imprisonment and malicious prosecution. The declaration contained two counts for false imprisonment and assault, and two for malicious prosecutions at the suit of the Singer manufacturing company, averring an arrest in each suit by a capias, upon which an order holding the bail was indorsed, founded upon an affidavit made by Josselyn--one on the 26th day of May, 1869, and the other on the 21st day of July, 1869. The declaration further averred that the attempt to imprison or detain him had been abandoned. The defendant pleaded the general issue. The cause was tried by a jury. The evidence for the plaintiff showed that he was twice arrested, as laid in the declaration--the first time on the 7th of June, 1869, and was in custody nine days, and the second time on the 23d of July, 1869, and was in custody eleven days--from each of which arrests he was discharged by a writ of habeas corpus.

The dealings between the plaintiff and the Singer manufacturing company, whose agent at Hillsdale he had been, were fully presented to the jury. The questions which arose upon the admissibility of evidence are mainly those which relate to the conduct of Josselyn, who, as general agent of the company, had caused the suits to be commenced, and the advice under which he acted, and are stated in the opinion of the court.

At the close of the plaintiff's case, and before proceeding to the defense, the counsel for defendant moved the court to instruct the jury to find a verdict for the defendant of no cause of action, for these reasons: 1st. Because the declaration is for malicious prosecution, and the stipulations filed for discontinuance show that the prior suits were not determined when this suit was commenced. 2d. Because there is no count in the declaration alleging abuse of legal process in suing out a second capias while the first suit on capias, for the same cause, was undetermined.

The court denied the motion, and refused to instruct the jury as requested, to which the defendant excepted.

The court charged the jury as follows: "Inasmuch as it appears in evidence that the capias suits commenced by the Singer manufacturing company against George L. McAllister, were not ended at the time this suit was commenced, it is the duty of the court to instruct you that the plaintiff cannot recover on the third and fourth counts of the declaration for malicious prosecution. You will understand that the charge of the court relates entirely to the first and second counts for false imprisonment. You must be satisfied from the evidence that the defendant Josselyn made the affidavits and procured the arrest of the plaintiff without probable cause, and that he was actuated by feelings of malice. Probable cause means a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the party accused is guilty of the offenses with which he was charged.

"The defendant Josselyn, in the affidavit which he made to procure the arrest of plaintiff, in substance charged the plaintiff with fraudulently converting to his own use certain moneys which he had received belonging to the Singer manufacturing company. The law protects the defendant if, at the time he made the affidavits and procured the arrest of the plaintiff, he had reasonable or probable cause for the statement he made--that the plaintiff had fraudulently refused to pay over moneys received by him belonging to the Singer manufacturing company, and had converted the same to his own use--that is, if he had such ground as would induce a man of ordinary prudence and discretion to believe in the guilt of the plaintiff, and if he acted in good faith on such belief. Malice, express or implied, must also be established."

The court read to the jury the following from 1st American Leading Cases, p. 226, at the same time saying that he had not had time to copy it into his charge, but would do so before his charge was filed with the clerk, viz.: "'Malice, implied or express, must also be established; but the word is to be understood in its legal sense, in which it generally appears to be used as the opposite of bona fides. It is not necessary to prove malice in the ordinary sense of the word; any improper or sinister motive would be sufficient. Malice may be inferred. Malice in law means an act done wrongfully and without reasonable and probable cause, and not, as in common parlance, an act dictated by angry feelings or vindictive motives. Malice has a technical meaning, and is not to be considered as in the common conversational or classical sense. Any prosecution carried on, knowingly, willfully and wantonly, or obstinately, for no purpose or end of justice or redress, but merely to the vexation of the person prosecuted, I conceive to be malicious. Malice is in all cases a question of fact for the jury, but want of probable cause is sufficient to authorize them to presume malice without express evidence.' If the defendant laid all the facts of the case fairly before his counsel upon beginning proceedings, and acted in good faith upon the opinion given him by counsel, however erroneous that opinion may be, he is not liable to this action; but if he misrepresented the case or if he does not act in good faith under the advice he has received, and knows or does not believe that there was any cause to make the affidavit or procure the arrest of the plaintiff, he is not protected, and it is for the jury to determine whether he acted in good faith and honestly believed the statements contained in his affidavits to be true."

Defendant excepted to all that portion of the charge which discussed the question of malice and want of probable cause, and which referred to advice of counsel.

Under the charge of the court, the jury found a verdict for the plaintiff of three thousand dollars, and the judgment entered thereon, the defendant below brings into this court by writ of error.

Judgment reversed, with costs, and a new trial granted.

H. M. & W. E. Cheever and S. Larned, for plaintiff in error.

Geo. A. Knickerbocker, Ezra L. Koon and C. A. Stacy, for defendant in error.

OPINION

Campbell, Ch. J.

The action below was for false imprisonment and malicious prosecution, the injuries complained of having been two successive arrests, on what was claimed to have been an insufficient showing in law. The counts for malicious prosecution having been otherwise disposed of, the case went to the jury on the counts for false imprisonment, and judgment was rendered for the plaintiff below, and is now removed into this court for review. The errors complained of, although the number of assignments is considerable, do not involve many different questions, and may be disposed of without taking them all up separately.

The plaintiff below was allowed to show the temper and demeanor of Josselyn when arrested in the present action, and gave proof of angry conduct and expressions on that occasion and subsequently. This evidence was introduced to show malice in Josselyn, at the time he made the affidavits for McAllister's arrest, some months before. We think such evidence was not proper for that purpose. His declarations...