Krause v. Bishop

• Decision Date: 13 July 1904
• Citation: 18 S.D. 298,100 N.W. 434
• Parties: G. K. KRAUSE, Plaintiff and appellant, v. CAROLINE BISHOP, Defendant and respondent.
• Court: South Dakota Supreme Court

18 S.D. 298

100 N.W. 434

G. K. KRAUSE, Plaintiff and appellant, v. CAROLINE BISHOP,

Defendant and respondent.

South Dakota Supreme Court

Appeal from Circuit Court, Minnehaha County, SD

Hon. Joseph W. Jones, Judge

Affirmed

Joe Kirby, G. B. Krause

Attorneys for appellant.

Winson & McNaughton

Attorneys for respondent.

Opinion filed July 13, 1904

CORSON, P. J.

This is an appeal by the plaintiff from a judgment entered upon a directed verdict in favor of the defendant. The action was for malicious prosecution, and the principal defense relied on was that the defendant, in instituting the prosecution under which the plaintiff was arrested and tried, acted under the advice of her counsel and the state’s attorney.

At the conclusion of all the evidence the defendant moved the court for the direction of a verdict in her favor and against the plaintiff on the following grounds:

“(1) That the undisputed evidence shows that the defendant, before commencing the prosecution of plaintiff, made a full and fair statement of all material facts within her knowledge to counsel, and, upon his advice, in good faith, commenced the prosecution, …

(3) For the reason that the undisputed evidence shows that the defendant herein had proper cause to institute the prosecution against the plaintiff.”

This motion was granted, but upon which of the grounds does not affirmatively appear. There seems to have been no material conflict in the evidence, and it was undisputed that counsel for the defendant and the state’s attorney, upon a statement of facts by the defendant, advised her that such facts constituted an offense, under the law.

It is contended by the appellant that a malicious prosecution embraces both law and fact, and that cases of that class must be submitted to the jury; but, in our opinion, this contention is untenable. There is no distinction between that and other cases, where the facts are undisputed. Whether or not the facts, when so undisputed, constitute probable cause, or whether or not, where the defendant acted upon the advice of counsel, after a full statement of the facts to him, and there is no evidence that the defendant acted maliciously or in bad faith, other than proof that the plaintiff was acquitted, the defendant is protected, are questions of law for the court. Mr. Newell, in his work on Malicious Prosecution, p. 278, says:

“What is meant by the expression that probable cause is a mixed question of law and fact is, if the circumstances of the case which are adduced as proof of a want of probable cause are controverted, if conflicting testimony is to be weighed, or if the credibility of witnesses is to be passed on, the fact of the existence or nonexistence of probable cause should be submitted to the jury, with proper instructions as to the law. But where there is no dispute about the facts, it is the duty of the court on the trial to apply the law to them, and pronounce upon the legal effect of the evidence without intervention of the jury.”

And speaking of the defense of advice of counsel, the Supreme Court of Illinois, in Anderson v. Friend, 85 Ill. 135, says:

“It has been uniformly held that, where the prosecutor fairly presents all the facts to a respectable practicing attorney, who, from such a statement of facts, advises they are sufficient to warrant a prosecution, the prosecution is protected against a suit for malicious prosecution, and, from the very nature of our criminal laws, it must be so; otherwise there would be no safety in originating such proceedings. But few persons outside the...