King v. Apple River Power Co.

• Decision Date: 30 April 1907
• Citation: 111 N.W. 668,131 Wis. 575
• Parties: KING v. APPLE RIVER POWER CO. ET AL.
• Court: Wisconsin Supreme Court

131 Wis. 575

111 N.W. 668

KING

v.APPLE RIVER POWER CO. ET AL.

Supreme Court of Wisconsin.

April 30, 1907.

Appeal from Circuit Court, St. Croix County; E. W. Helms, Judge.

Action by Julia King against the Apple River Power Company and another. From a judgment for plaintiff, defendants appeal. Reversed and remanded.

Appeal from an order granting a new trial.

Action for malicious prosecution.

Defendant, according to the allegations of the complaint, maliciously and without probable cause swore out a warrant before a justice of the peace in St. Croix county, Wisconsin, falsely charging plaintiff with the offense of maliciously disturbing, interfering with, and injuring the wires and poles of the defendant company, used in its business of operating an electric power plant in such county, and procured plaintiff to be arrested on such warrant and imprisoned till she gave bail for her appearance to answer the complaint. Further, as alleged, plaintiff was duly tried upon such charge and acquitted. Other allegations were made as part of plaintiff's cause of action bearing on the question of damages.

Defendants answered, among other things, that the complaint was made in good faith, without malice, and with probable cause to believe plaintiff was guilty.

On the trial there was substantially undisputed evidence to this effect: Defendant Epley was president of the defendant company, which owned, controlled and operated an electric power plant. The pole line was located along the highway in front of plaintiff's premises. In the latter part of November, 1904, her son, assuming to represent her and to be under the guidance of a lawyer, called upon Epley and demanded a removal of the poles from in front of his mother's place, threatening that if the demand was not complied with to cut the poles down. No attention was paid to such demand. December 2d, thereafter an employé of the company who had been in its service for several years and was regarded by it and by Mr. Epley to be trustworthy, informed the latter by telephone that plaintiff's son was cutting the poles down, and that he was acting under her direction. A short time afterwards Epley was informed a second time as before by one of the company's employés, who said: “They are chopping the poles and the current is on.” Thereupon Epley went to the office of a justice of the peace, who was a lawyer, and stated to him the situation. He suggested seeing Mr. McNally about the matter. The latter was a reputable lawyer of twenty years' experience and more. Epley related to Mr. McNally all the facts aforesaid which were all that were within his knowledge. He believed plaintiff's son, under her direction, had actually disturbed the company's property, as he stated. On such statement Mr. McNally advised Epley that he was justified in making the complaint, and to do so was the only way to proceed. Thereupon McNally prepared the complaint and the warrant. They were taken to the justice of the peace, the complaint being duly sworn to and filed and the warrant then issued and executed. The complaint charged both the plaintiff and her son with being guilty of unlawfully disturbing the company's property. Upon the hearing before the justice the plaintiff was discharged, but it was proved that her son actually did unlawfully disturb the company's property. At the close of the evidence each of the defendants separately, and they jointly, by counsel, moved for the direction of a verdict. The motion was denied and the cause submitted to the jury for a special verdict, resulting in the following findings: (1) Defendant Epley in procuring the warrant to be issued did not act without probable cause. (2) Before commencing the criminal prosecution he made a full, fair and honest statement of all the material facts known to him bearing upon the question of plaintiff's guilt of the offense alleged against her, to W. F. McNally for the purpose of procuring his legal advice thereon. (3) Said McNally honestly and in good faith advised Epley that upon the facts so stated to him plaintiff was guilty of the offense for which she was arrested. (4) Epley at the time he swore to the complaint did not have knowledge or information such as would lead a man of ordinary prudence and caution to believe plaintiff was guilty of the offense charged. (5) Epley, before he swore to the complaint, did not use the same prudence and caution an ordinarily prudent and cautious man would have exercised in ascertaining the facts concerning the commission of the crime charged. (6) He sincerely and in good faith believed when he swore to the complaint that plaintiff was guilty of the offense charged. (7) He swore to the complaint in good faith and without malice against the plaintiff. (8) Plaintiff suffered actual damages by reason of her arrest in the sum of $1,000. (9) We do not assess any exemplary damages to be recovered by plaintiff in case she is entitled to judgment.

The defendants moved for judgment on the verdict and plaintiff moved for an order setting the same aside and for a new trial. The former was denied and the latter granted upon the ground that the answers were inconsistent and that error was committed in the instructions; the error supposed to have been so committed not being specified. The defendants appeal.

Timlin, J., dissenting.

W. F. McNally, for appellants.

J. A. Frear and A. J. Kinney, for respondent.

MARSHALL, J. (after stating the facts).

Whether there was probable cause in a case of this sort is solely a question of law for the court where the facts are undisputed. The province of the jury is to deal with the controversy as to facts where there is a dispute in that respect, but such controversy being settled the ultimate question is for the court. Stewart v. Sonneborn, 98 U. S. 187, 25 L. Ed. 116.

Generally speaking, in order for a person to have probable cause to believe another guilty of a crime warranting institution of proceedings for his punishment, such person must have such knowledge or information as would lead an ordinarily prudent man to such belief, and it is ordinarily a question of fact for the jury under the circumstances of the given case as to whether there was such knowledge. But it is a settled rule of law that if a person takes the advice of reputable counsel in making the complaint, honestly believing the one charged to be guilty, he has probable cause as a matter of law for his action, or in other words his conduct is consistent with that of a man of ordinary prudence, if the advice of counsel is based upon a full, fair and honest statement of all the facts and information within such person's knowledge.

In this case the court submitted to the jury by the first question, whether respondent Epley was possessed of such knowledge and information as would produce an honest belief in the mind of an ordinarily prudent man that the respondent was guilty; the form of the question being such as to require the jury to find whether there was probable cause or not under the legal test suggested and the answer was, in effect, in the affirmative, though by the form of the question the jury were compelled to express the finding in a negative form; the language of the question being: “Did the defendant F. W. Epley, in procuring the warrant in question to be issued, act without probable cause for so doing?”

The court instructed the jury that in order to warrant them in finding that Epley did not act without probable cause they must find that he had knowledge and information such as...