Larsen v. Johnson

• Decision Date: 30 July 1920
• Docket Number: No. 4655.,4655.
• Citation: 43 S.D. 223,178 N.W. 876
• Parties: LARSEN v. JOHNSON.
• Court: South Dakota Supreme Court

43 S.D. 223

178 N.W. 876

LARSEN

v.JOHNSON.

No. 4655.

Supreme Court of South Dakota.

July 30, 1920.

Appeal from Circuit Court, Clay County; R. B. Tripp, Judge.

Action by Aldric J. Larsen against Hansene Johnson. Verdict for plaintiff, and from an order granting new trial, plaintiff appeals. Order affirmed.W. J. Bulow, of Beresford, and Bogue & Bogue, of Parker, for appellant.

Geo. J. Danforth, of Sioux Falls, W. A. Bauman, of Vermillion, and Emery S. Walker, of Chicago, Ill., for respondent.

McCOY, P. J.

Plaintiff brought this action, alleging that defendant wrongfully, falsely, maliciously, and without probable cause accused and charged plaintiff with having murdered her son, and caused plaintiff to be arrested and prosecuted on said charge, thereby greatly injuring him in his good name, reputation, and standing in the community in which he lived; that notwithstanding plaintiff was discharged upon a hearing duly had according to law, the defendant wrongfully and maliciously, and wholly without cause, thereafter continued to falsely charge and assert that plaintiff was guilty of murdering her son. Upon the trial verdict was rendered in favor of plaintiff. From an order granting a new trial plaintiff appeals.

The order granting a new trial specified as grounds therefor: First, that the court committed error in law in not granting defendant's motion to direct a verdict in her favor, the undisputed evidence showing that she made a full and fair statement of all material facts then known to her to an attorney at law, who advised the prosecution; second, that the prosecution was at the instance of the state's attorney who, after personal investigation, advised the same, not relying upon the statements of defendant, and that the court erred in not directing a verdict in her favor on this ground; third, that a fair and impartial trial was not had on the merits by reason of the misconduct of attorneys who participated in the trial; that bitter and offensive differences of the attorneys continually diverted the attention of the jury and the court from the issues.

[1] We are of the opinion that the learned trial court erred in granting a new trial on either of the first or second of said grounds. This court in Jackson v. Bell, 5 S. D. 257, 58 N. W. 671, adopted the rule:

“That when a party communicates to counsel in good standing all the facts bearing upon the guilt of the accused of which he has knowledge, or could have ascertained by reasonable diligence, and in good faith acts upon the advice of such counsel in prosecuting the party accused, he cannot be held responsible for malicious prosecution.”

[2][3] 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. C., M. & St. P. Ry. Co., 34 S. D. 330, 148 N. W. 598. We are of the opinion that the evidence in this case on these propositions was of such a conflicting nature that different persons might...