Larsen v. Johnson

• Decision Date: 11 February 1924
• Docket Number: 5419
• Citation: 47 S.D. 202,197 N.W. 230
• Parties: ALDRIC J. LARSEN, Plaintiff and respondent, v. HANSENE JOHNSON, Defendant and appellant.
• Court: South Dakota Supreme Court

47 S.D. 202

197 N.W. 230

ALDRIC J. LARSEN, Plaintiff and respondent,

v.

HANSENE JOHNSON, Defendant and appellant. South Dakota Supreme Court Appeal from Circuit Court, Clay County, SD Hon. R. B. Tripp, Judge #5419--Affirmed Danforth & Barron, Sioux Falls, SD Gunderson & Gunderson, Vermillion, SD Attorneys for Appellant. Bogue & Bogue, W. J. Billow, Beresford, SD Attorneys for Respondent. Opinion filed February 11, 1924 (See 43 SD 223, 178 N.W. 876)

GATES, P. J.

This cause was before us on a former appeal and an opinion was rendered in 43 SD 223, 178 N.W. 876. Upon retrial the jury returned a verdict for plaintiff in the sum of $4,000. The court denied defendant's motion for judgment notwithstanding the verdict, but therewith the trial judge filed an opinion stating that such ruling was because of the former opinion of this court and was contrary to his personal views; that it could be reasonably contended that the facts disclosed at this trial were not materially different from those on the former trial; and that in his opinion the undisputed evidence showed that the state's attorney was the proximate cause of the prosecution and not this defendant. The defendant appeals from the order denying new trial.

In Just v. Martin Bros. Co., 159 N.W. 44, we pointed out the elements necessary to sustain an action for malicious prosecution, viz:

"(1) The commencement or continuance of an original criminal or civil judicial proceeding: (2) its legal causation by the present defendant against the plaintiff, who was defendant in the original proceeding; (3) its bona fide termination in favor of the present plhintiff; (4) the absence of probable cause for such proceeding; (5) the presence of malice therein; (6) damage conforming to legal standards resulting to plaintiff."

That elements 1, 3, and 6 existed in this case was undisputed. That there was an absence of probable cause was clearly a question for the jury upon the record made at the trial. That appellant was actuated by malice can scarcely be doubted. At any rate, the evidence was amply sufficient to justify the jury in so believing.

Was the evidence undisputed that the state's attorney was the proximate cause of the prosecution and not appellant?

In the former opinion we said (and this is what influenced the trial judge to act contrary to his personal views):

"Whether or not a party communicates to counsel all the facts bearing upon the guilt of the accused known to him, or whether or not the accuser in good faith acted upon the advice of such counsel, are questions of fact to be determined from evidence. Likewise, whether or not the state's attorney based the prosecution on his personal investigation or on the statements of the accuser is also a question of fact to be determined from evidence. Malloy v. Chicago, M. & St. P. Ry. Co., 34 SD 33o, 148 N.W. 598. We are of the opinion that the evidence in this case of these propositions was Of such a conflicting nature that different persons might reasonably have drawn opposite conclusions therefrom and therefore were questions for the jury to determine."

It is true that upon the same state of facts that opinion was binding upon the trial court on the second trial, but it is not binding on this court, and we should re-examine the question. M. E. Smith & Co. v. Kimble, 162 N.W. 162.

It does not appear that any investigation was made by appellant or by the state's attorney as to respondent's whereabouts at the time appellant's son was killed. The testimony on that point tended to show that respondent could not have done the killing and it was properly a question for the jury whether appellant could have ascertained those facts by the exercise of reasonable diligence. The state's attorney testified to...