Manz v. Kippel

• Decision Date: 17 November 1914
• Citation: 149 N.W. 375,158 Wis. 557
• Parties: MANZ v. KIPPEL ET AL.
• Court: Wisconsin Supreme Court

158 Wis. 557

149 N.W. 375

MANZ

v.KIPPEL ET AL.

Supreme Court of Wisconsin.

Nov. 17, 1914.

Appeal from Circuit Court, Milwaukee County; O. T. Williams, Judge.

Action by Louis A. Manz against George Kippel and others. A judgment for the civil court of Milwaukee in favor of plaintiff was set aside, and a new trial granted, on appeal to the circuit court, and plaintiff appeals. Reversed and remanded, with directions to affirm the judgment of the civil court.

The defendants filed a petition in the county court of Milwaukee county, praying that a judicial inquiry be made as to the sanity of the plaintiff. Upon such petition the court made an order for the examination of the plaintiff's mental condition. Two physicians were appointed to conduct such examination, and they reported the plaintiff sane, whereupon the proceeding was dismissed. Plaintiff thereafter brought this action in one of the civil courts of Milwaukee county to recover damages for malicious prosecution. The trial resulted in a verdict in his favor, which assessed his compensatory damages at $500 and punitory damages at $1,200. The court deemed the punitory damages excessive, and ordered that they be reduced to $600, and judgment was accordingly entered. The order did not give any option to the plaintiff to take judgment for the sum of $1,100 in the aggregate or submit to a new trial. The defendants appealedto the circuit court, which court made an order setting aside the judgment and awarding a new trial. Plaintiff appeals from this order.

The circuit court did not recite in its order the error or errors committed by the trial court which it deemed manifestly prejudicial to the defendants. The respondents urge in this court that the judgment of the civil court was erroneous, because the court did not reduce the punitory damages to the lowest sum that a future jury would be likely to award and give the option to the plaintiff to take judgment for such sum or submit to a new trial. They further insist that inasmuch as no investigation was made or evidence taken on the insanity inquiry, beyond that of the two physicians appointed, the discharge in the county court was not prima facie proof of want of probable cause, and, there being no other proof of it, the court should have granted their motion for a nonsuit. They urge as a further ground of error that the discharge in the county court, considering the manner in which it was made, was not a final determination in favor of the plaintiff, and furnished no basis for an action for malicious prosecution, and that judgment in their favor notwithstanding the verdict should have been rendered. Finally, it is contended that the judge of the civil court committed prejudicial error in charging the jury as follows:

(a) “It is in evidence that defendants consulted an attorney before commencing the proceedings in question. In instituting criminal proceedings, it would be a justification that all the facts within the knowledge of the prosecutor had been stated fairly and fully to an attorney and that the proceedings were started on the attorney's advice. But, gentlemen, the proceeding against plaintiff was not a criminal proceeding. The question of the sanity or insanity of plaintiff is not one upon which an attorney has special knowledge. The fact that defendants, or either of them, called upon an attorney, is not, therefore, of itself justification; but it may be considered by you as bearing upon the good faith of the defendants.”

(b) “Now, as to the element of malice. Malice, gentlemen, means an unlawful act done willfully and purposely to the prejudice and injury of another. It is not necessary, to render an act malicious, that the party be moved by a feeling of hatred or ill will, revenge, or spite, or that he pursue in general a bad purpose or design. One may be actuated by a good purpose or design, yet if he willfully inflicts a wrong on another, which is not warranted by law, his act is malicious.”

Lehr, Kiefer & Reitman, of Milwaukee (J. Elmer Lehr, of Milwaukee, of counsel), for appellant.

McElroy & Ferguson, of Milwaukee, for respondents.

BARNES, J. (after stating the facts as above).

[1] 1. The fact that plaintiff was in form given no option to submit to a reduction of the verdict or take a new trial is something that he might complain of; but it is not apparent that the defendants have any cause of complaint. Had the court's attention been directed to the omission, it would no doubt have been supplied. We find nothing to indicate that the court did not fix the recovery of punitory damages at the lowest sum which it was thought a jury in a subsequent trial would be likely to award.

[2] 2. The discharge in the county court was prima facie evidence of want of probable cause. Bigelow v. Sickles, 80 Wis. 98, 49 N. W. 106, 27 Am. St. Rep. 25;Eggett v. Allen, 119 Wis. 625, 96 N. W. 803. There was other evidence offered by plaintiff before he rested his case that would justify the jury in finding want of probable cause, and there was ample evidence to warrant such a finding at the close of the testimony.

[3] 3. We entertain no doubt that the discharge in the county court was a sufficient basis on which to predicate an action for malicious prosecution, where there was a want of probable cause for the institution of the proceeding. Woodworth v. Mills, 61 Wis. 44, 20 N. W. 728, 50 Am. Rep 135;Lueck v. Heisler, 87 Wis. 644, 58 N. W. 1101; Eggett v. Allen, supra; Strehlow v. Pettit, 96 Wis. 22, 71 N. W. 102;Bigelow v. Sickles, 80 Wis. 98, 49 N. W. 106, 27 Am. St. Rep. 25; 26 Cyc. pp. 57, 58, 59, and cases cited.

[4] 4. No good reason is apparent why advice of counsel would not be a defense, if honestly given on a full and fair statement of the facts within the knowledge of a party about to sign such a petition as was here signed. No authority is cited to support the instruction...