Malloy v. Chi., M. & St. P. Ry. Co.

• Decision Date: 08 September 1914
• Docket Number: No. 3506.,3506.
• Citation: 148 N.W. 598,34 S.D. 330
• Court: South Dakota Supreme Court
• Parties: MALLOY v. CHICAGO, M. & ST. P. RY. CO.

34 S.D. 330

148 N.W. 598

MALLOY

v.CHICAGO, M. & ST. P. RY. CO.

No. 3506.

Supreme Court of South Dakota.

Sept. 8, 1914.

Appeal from Circuit Court, Minnehaha County; Joseph W. Jones, Judge.

Action by J. F. Malloy against the Chicago, Milwaukee & St. Paul Railway Company. Judgment for defendant, and plaintiff appeals. Affirmed.George W. Egan, of Sioux Falls, and Kenyon, Kelleher & O'Connor, of Ft. Dodge, Iowa, for appellant.

William G. Porter and Ed. L. Grantham, both of Aberdeen, and C. O. Bailey, of Sioux Falls, for respondent.

GATES, J.

Plaintiff, an employé of the defendant company at Aberdeen, was, on February 8, 1908, arrested upon a complaint made by one Sheehan, a special agent or detective of the company, charging him with the theft of company coal on October 25, 1907. A preliminary hearing was had on February 13, 1908, and he was bound over to the circuit court and confined in the Brown county jail until March 27, 1908, when he was released upon bail. On December 5, 1908, the cause was dismissed without trial upon the recommendation of the state's attorney. This is an action for malicious prosecution and was begun nearly five years after plaintiff's arrest, viz., on January 8, 1913.

At the conclusion of the trial, the learned trial court directed the jury to return a verdict for defendant, upon the ground that the state's attorney of Brown county, upon a full and fair statement of all the facts known to the detective or which he could reasonably learn, advised the detective that the facts recited constituted sufficient evidence to justify the prosecution; that it constituted probable cause to believe this plaintiff guilty. Krause v. Bishop, 18 S. D. 298, 100 N. W. 434. Appellant urges:

“(a) That the question as to whether or not Sheehan ascertained all the material facts in connection with the question of the guilt of Malloy, which a reasonably diligent investigation would have disclosed, was for the jury.

(b) That the question whether or not Sheehan made a truthful statement of those facts within his knowledge to L. T. Van Slyke, the state's attorney, was for the jury.

(c) That the question as to whether or not Sheehan filed the information under instructions from the ‘company,’ or under the direction of Van Slyke, was for the jury.

(d) That the question as to whether or not Van Slyke advised Sheehan to file the information was for the jury.

(e) That the question as to whether or not, if Van Slyke advised the prosecution, Sheehan acted under the advice in good faith, or because he was instructed to do so by the company, was for the jury.

(f) That the question as to whether or not the prosecution of Malloy was instituted by Sheehan in good faith, for the purpose of vindicating the law, or was instituted by him for the purpose of forcing Malloy to give information respecting the guilt of another, was a question for the jury.”

[1]These grounds are predicated upon the alleged insufficiency of the evidence to sustain the action of the trial court in directing the verdict. Appellant's brief does not contain the recital, required by chapter 172, Laws of 1913, and by rule 6 of this court (140 N. W. viii), that the brief contains a statement of all the material evidence received upon the trial. Gilfillan v. Schaller, 32 S. D. 638, 144 N. W. 133. We will assume therefore, that every fact was proved which was necessary in order to justify the action of the trial court in directing the verdict and will only examine the testimony for the purpose of determining whether there was any substantial conflict therein, i. e., whether any fact was affirmatively proved which showed that a full and fair disclosure of the facts learned by Sheehan, or which he could reasonably have learned, was not made by him to the state's attorney prior to the time he signed the complaint for plaintiff's arrest.

[2]It is claimed by appellant that Sheehan did not make any investigation as to the character and reputation of plaintiff before signing the complaint. He had been informed by Pickering, who was working with plaintiff on the switch engine, that plaintiff did transfer a car of coal from the company coal track and place it before one Anderson's coal yard on October 25, 1907; that he had seen plaintiff rub the chalk marks, “C. C.,” meaning company coal, off from the car and Sheehan had been informed by Cully, the yardmaster, that O'Brien would give testimony to the same effect. The following contents of the printed record show that investigation Sheehan made as to plaintiff's character:

“Q. You did not tell Mr. Van Slyke anything about Malloy's character, did you? A. I told him all I had found out about it. Q. What did you tell him about Malloy's character when you went to him? A. I told him what I had found out about his coal deals, and one thing and another, and that he had been drinking a good deal around town and had been discharged for being drunk on duty. I heard a rumor around there that he was discharged for being drunk and that he used to leave the engine in the yard and go off to the saloon. Q. Why did you tell him that Malloy was a man who drank? A. Well, I heard it from several parties and several railroad men. Mr. Cully, the yardmaster, and the chief of police, Mr. Zerbes, told me, and I guess pretty nearly everybody I asked; they all said the same thing. I did not tell Van Slyke anything about him being a man of bad character or thief or anything like that. I explained what he had done about leaving his engine and going to the saloon. I did not explain anything about him being a man of bad character or thief or anything like that. I did not tell him that he had been stealing before. I just told him what O'Brien and Pickering had said. I did not tell him that I had investigated his character.”

There is nothing further in the record which throws light upon plaintiff's character or reputation. We do not think, under the facts in this case, that Sheehan can be held at fault in not making further inquiries as to plaintiff's character. If it had been shown that Sheehan knew that plaintiff's reputation for honesty was good and that he had failed to report such knowledge to the state's attorney, then a different question would be presented. 19 A. & E. Ency. (2d Ed.) § 698; McIntosh v. Wales (...