Kaeppler v. Red River Val. Nat. Bank of Fargo

• Decision Date: 27 May 1899
• Citation: 79 N.W. 869,8 N.D. 406
• Parties: KAEPPLER v. RED RIVER VAL. NAT. BANK OF FARGO.
• Court: North Dakota Supreme Court

8 N.D. 406

79 N.W. 869

KAEPPLER

v.RED RIVER VAL. NAT. BANK OF FARGO.¹

Supreme Court of North Dakota.

May 27, 1899.

Syllabus by the Court.

1. Where a complaint in an action states, in a single count, facts that constitute a cause of action for false imprisonment and also for malicious prosecution, and where plaintiff, at the close of the testimony, moved for a directed verdict in his favor upon stated grounds, and which motion should have been sustained if the action was false imprisonment, but should have been denied if the action was malicious prosecution, and where, immediately upon the denial of such motion, plaintiff requested an instruction to the jury, which was given, and which limited any recovery in the case to damages for malicious prosecution, held, that plaintiff could not urge in this court, as ground of reversal, that the trial court erred in denying the motion for verdict.

2. For the error of the trial court in permitting an improper cross-examination, as set forth in opinion, the case is reversed.

3. An affidavit which is used as the basis for a warrant of arrest in insolvency proceedings, and in which the probative facts by which it is sought to establish the existence of the ultimate facts required by the statute are alleged upon information and belief, but no grounds for such information and belief are stated, is insufficient to give the court jurisdiction to issue a warrant of arrest in that particular case.

Appeal from district court, Cass county; C. A. Pollock, Judge.

Action by Carl A. Kaeppler against the Red River Valley National Bank of Fargo. Judgment for defendant, and plaintiff appeals. Reversed.H. R. Turner and Morrill & Engerud, for appellant. Ball, Watson & Maclay, for respondent.

BARTHOLOMEW, C. J.

Plaintiff brought an action, as he claims, and as the court instructed the jury, under section 4971, Rev. Codes, which reads: “Every person who suffers detriment from the unlawful act or omission of another may recover from the person in fault a compensation therefor in money, which is called damages.” Under that section it is clear that an action might be brought for false imprisonment or for malicious prosecution. The facts were that the defendant caused the arrest of plaintiff in insolvency proceedings in the district court of Cass county, and the defendant was held by the sheriff under such arrest for about 30 hours, and then released at the request of defendant, and later, upon plaintiff's application, the order of arrest was vacated. In this court both parties state that the action is for false imprisonment. If the complaint contains any sufficient allegation that the warrant of arrest was illegal, or that the allegations in the affidavit upon which the warrant was based were false, then we think it otherwise broad enough to cover a case of false imprisonment. It certainly covers a case for malicious prosecution. It is alleged that the defendant herein “willfully and maliciously, and with intent to injure the plaintiff, made affidavit,” etc., and that “in so doing the defendant acted maliciously, and without probable cause, or any cause whatever.” After the testimony was closed the record shows the following proceedings: “The plaintiff thereupon moved the court to direct the jury to return a verdict for the plaintiff against the defendant, but to leave it to the jury to ascertain and determine the amount of damages which the plaintiff is entitled to recover, under proper instructions, on the ground that the evidence in this case is undisputed that the arrest of the plaintiff was made by the defendant under process which is invalid, and furnishing no justification for the arrest, for the reason that the affidavit upon which the warrant was obtained does not state any facts sufficient to justify the issuance of a warrant, and is so entirely deficient of statements of facts as to give the court no jurisdiction to issue such process, and, further, that the statute (section 6013 of the Revised Codes) is unconstitutional and void, in so far as it authorizes the issuance of process for the arrest of an alleged insolvent. Motion is denied, and plaintiff excepts. Thereupon the plaintiff submitted to the court the following requests for instructions to the jury.” And the third instruction requested by plaintiff and given by the court states: “In order to recover, the plaintiff must also show that the arrest was malicious,”-and then proceeds to define “malice.”

We have quoted thus much from the record because it is material to ascertain, if we can, upon what theory the plaintiff was seeking to recover. It may be conceded that, under the averments of the complaint, he had a right to recover either for false imprisonment, or malicious prosecution, or both. See Wagstaff v. Schippel, 27 Kan. 450. But it is very clear that the ruling of the court on the motion for a directed verdict was right, if plaintiff was seeking to recover as for malicious prosecution, because, however defective the affidavit for the order of arrest may have been, or however unconstitutional the law authorizing the arrest may be, plaintiff could not recover for malicious prosecution unless the defendant was actuated by legal malice in making the affidavit; and, while a defective affidavit might be regarded as showing want of probable cause, which in turn might be some evidence of malice, yet there was so much evidence in the case tending to show absence of all malice that the court could not take that question from the jury. On the theory of a recovery for false imprisonment, plaintiff was entitled to a directed verdict, if the affidavit for order of arrest was so defective that it gave the court no jurisdiction, or if the statute authorizing the arrest be unconstitutional. But, immediately upon the denial of plaintiff's motion, he requested a charge to the jury, and the court gave it, which necessarily confined the recovery in the case to damages for malicious prosecution. From these facts we are warranted in holding either that he presented his motion on the theory of a recovery for malicious prosecution, in which case it was properly denied, or that, if he presented it on the theory of a recovery for false imprisonment, he at once abandoned that ground, and limited his right to recover to a recovery for malicious prosecution. If the latter be true, then the motion must be held waived for all purposes, and cannot be urged in this court. In either view, this assignment of error must be overruled.

But there are certain assignments of error relating to the admission of testimony that, we think, must be sustained. The first witness called by plaintiff was the sheriff who made the arrest. The testimony elicited by plaintiff was purely of a formal character. The witness was shown the warrant of arrest, and testified that under the warrant he arrested the plaintiff, and held him in custody for about 30 hours. Nothing further was asked by plaintiff. The warrant of arrest also directed the sheriff to seize the property of the plaintiff. On cross-examination this witness, over the repeated objections of plaintiff that it was not proper cross-examination, was permitted to testify as to what property he seized, where he found it, what condition it was in, and what plaintiff said as to where it was and how it came to be there. Of course, the object of this cross-examination was to show that the plaintiff was trying to conceal his property, and that, therefore, defendant had probable cause for causing his arrest. This was a vital point in the defense, but had been in no manner adverted to on the direct examination. We know that much discretion should be given to trial courts in matters of the kind, but still it is a legal discretion, and subject to control. Evidence of this damaging character, coming from the lips of the party's own witness, must have been highly prejudicial. It was outside the ordinary limits of cross-examination, and its admission was reversible error, which necessitates a new trial.

But, inasmuch as it is clear, from what counsel say in the argument of this case, that upon a new trial the plaintiff will rely entirely upon false imprisonment, and as both parties have discussed fully the matter of the sufficiency of the affidavit...