Mawhinney v. Morrissey

• Decision Date: 05 April 1932
• Docket Number: No. 25.,25.
• Citation: 208 Wis. 333,242 N.W. 326
• Parties: MAWHINNEY v. MORRISSEY.
• Court: Wisconsin Supreme Court

208 Wis. 333

242 N.W. 326

MAWHINNEY

v.MORRISSEY.^a1

No. 25.

Supreme Court of Wisconsin.

April 5, 1932.

Appeal from a judgment of the Circuit Court for Walworth County; C. M. Davison, Circuit Judge.

Action by Hugh Mawhinney against Edward Morrissey and another, dismissed as against the latter. Judgment for plaintiff, and named defendant appeals.--[By Editorial Staff].

Reversed, and remanded, with directions.

Action begun November 15, 1930; judgment entered May 16, 1931. Malicious prosecution. The defendant is a lawyer, having practiced in Walworth county for a period of twenty-nine years, and is the editor and proprietor of the Delavan Republican. His sister, Katie Morrissey, a codefendant, is the owner of a farm in Walworth county. The defendant, Edward Morrissey, and his sister Katie lived together. He acted as her attorney and adviser in all matters in respect to the farm. The plaintiff was hired to operate the Morrissey farm for one year commencing in April, 1929. Under the contract he was to be paid $90 a month, to have the use of the house and all the milk he wanted, and to be provided with a pig. The contract was renewed about April 25, 1930, for another year. The wages remained at $90 a month, plaintiff was to have what milk he wanted, a pig, potato patch, and garden. By its terms the second contract would have expired March 1, 1931, according to the claim of the plaintiff. The defendant claims that it was agreed that either party might terminate it upon ten days' notice. On July 23, 1930, when he went for his wages, the defendant Edward Morrissey asked the plaintiff to leave the farm. When he was told to leave the farm, some difficulty arose as a result of which the plaintiff was arrested for assault and battery. Following this incident there was considerable litigation between the parties. On the 26th day of July, 1930, the defendant attempted to put one Johnson in possession of the farm, the arrangement being that he should take possession on the evening of July 26, 1930. The defendant Edward Morrissey testified that on Sunday, July 26th, Johnson reported to him that the plaintiff on that morning had skimmed five cans of milk and took the cream to the house. Johnson told Edward Morrissey that he saw Vincent Mawhinney, plaintiff's son, going with a pail with a dipper in it from the milkhouse to the house where plaintiff lived. He then looked and found that five cans had been skimmed. Upon the strength of this statement, on August 2, 1930, the defendant Edward Morrissey made complaint against the plaintiff, charging him with larceny. Upon the complaint a criminal warrant was issued, and, on the 4th of August, Mawhinney was arrested and brought into court, whereupon he filed an affidavit of prejudice against the justice, and the cause was removed to the court presided over by the justice of the peace, R. D. Short. The case was adjourned by consent of the parties to the 16th day of August, 1930. On that day it was again adjourned to September 2d, and, on September 2d, the following entry appears upon the docket: “Plaintiff appears in person and defendant failed to appear and after waiting one full hour defendant failed to appear and on motion of B. A. Reynolds, defendant's attorney, this case is dismissed and the costs taxed to the state.”

The procurement of the warrant by Edward Morrissey and the arrest of the plaintiff pursuant thereto and the proceedings had before Justice Short constitute the basis of the present action. Upon the trial evidence was introducedto prove that, after the altercation on July 26th, the Morrisseys brought five different actions, including two criminal actions and one unlawful detainer action, all in connection with the controversy arising out of possession of the farm by the plaintiff. Some evidence was also introduced to the effect that the criminal action for larceny was dismissed by agreement of the parties. Upon the trial Mawhinney and his wife denied that they had wrongfully taken any cream from the cans of milk belonging to the owner of the farm. The defendant, Edward Morrissey, denied that he had any feeling of resentment against the plaintiff, and that he believed the statements made to him by Johnson and relied upon them in procuring the arrest of the plaintiff for larceny of the cream. At the close of the evidence, the court dismissed the action against the defendant Katie Morrissey. Thereupon, on behalf of the defendant Edward Morrissey, a motion to direct a verdict was made upon three grounds: (1) That probable cause was established as a matter of law; (2) that the criminal prosecution for larceny was dismissed as the result of an agreement between the parties; and (3) that it conclusively appeared that the defendant Edward Morrissey, being an attorney at law and as such, upon the facts stated to him, passed judgment, in concluding that the plaintiff was guilty of larceny and was thereby brought within the protection of the rule of law that the advice of an attorney at law is a justification. The court denied the defendant's motions, the case was submitted to the jury upon a special verdict, and the jury found (1) that the defendant Edward Morrissey procured the warrant against the plaintiff without probable cause; (2) that, at the time of the procurement of the warrant, Edward Morrissey was actuated by malice; assessed the plaintiff's damages as follows: Actual damages $200, exemplary damages, $300. The plaintiff had judgment accordingly, from which the defendant Edward Morrissey appeals.

Corrigan & Backus and Ruppa & Bortin, all of Milwaukee, for appellant.

William A. Sheldon, of Elkhorn, for respondent.

ROSENBERRY, C. J.

Four principal questions are raised upon this appeal: (1) That the defendant acted upon facts which showed as a matter of law that there was probable cause for the arrest of the plaintiff; (2) that, there being probable cause as a matter of law, the defendant acted without malice; (3) that the defendant Edward Morrissey having acted upon the advice of attorney upon a full statement of facts, probable cause and elimination of malice are established as a matter of law; (4) that it appears conclusively that the criminal proceedings which form the basis of the present action were terminated by agreement between the parties under such circumstances as to leave no foundation for subsequent claim of malicious prosecution.

[1] Whether or not there was probable cause for the arrest of the plaintiff...