McAllister v. Johnson

• Decision Date: 07 April 1899
• Citation: 78 N.W. 790,108 Iowa 42
• Parties: MCALLISTER v. JOHNSON.
• Court: Iowa Supreme Court

108 Iowa 42

78 N.W. 790

MCALLISTER

v.JOHNSON.

Supreme Court of Iowa.

April 7, 1899.

Appeal from district court, Dubuque county; Fred O'Donnell, Judge.

Action to recover damages for malicious prosecution. Trial to jury. Verdict and judgment for plaintiff. Defendant appeals. Reversed.Henderson, Hurd & Kiesel, for appellant.

Lyon & Lenehan and John Hawe, for appellee.

WATERMAN, J.

The defense interposed by the answer is a general denial. The county attorney was called as a witness in defendant's behalf, and it was sought to be shown that defendant disclosed to him all the facts of the transaction before instituting the prosecution. Defendant was also asked as to the same matter, and further it was attempted to show by him what advice he received from the county attorney. This testimony was ruled out, on plaintiff's objection, and appellant's first complaint is of this action of the trial court. The ground for this holding seems to have been that the defense of advice of counsel must be specially pleaded; that it cannot be shown under a general denial. The gist of plaintiff's action was malice and want of probable cause. Advice of counsel tended to directly rebut or disprove these essential elements. Mesher v. Iddings, 72 Iowa, 553, 34 N. W. 328. This being true, evidence to establish it was admissible under the pleadings. The rule is that any evidence is admissible under such an issue which tends to disprove the facts that plaintiff is required to establish. Johnson v. Pennell, 67 Iowa, 669, 25 N. W. 874. In Bowman v. Manufacturing Co., 96 Iowa, 188, 64 N. W. 775, the action was aided by attachment, and there was a counterclaim for damages for the wrongful and malicious suing out of the writ. The reply was a general denial, and under it plaintiff was permitted to show that he acted under advice of counsel in instituting the attachment proceeding. On appeal by defendant, the admission of this testimony was complained of, and upon this subject it is said in the opinion: “It is insisted by appellants that the fact that plaintiff acted upon the advice of counsel was a mitigating circumstance, which should have been pleaded. But it was not shown as a mitigating circumstance, within the meaning of the section quoted. Section 2961 of the Code of 1873, in regard to attachments, provides that if, in an action on the bond, it be shown that the attachment was sued out maliciously, the plaintiff therein may recover exemplary damages. The defendants aver in their counterclaim that the allegations of the petition on which the attachment was issued were made with malice, for the purpose of procuring the writ, and to injure the defendants, and that they were injured by them. The defendants therefore allege grounds for the recovery of exemplary damages. The reply contains a general denial, and that is a denial of the allegation of malice. To sustain the issue thus formed, evidence was offered for the defendants, and it was competent for the plaintiff to offer any competent proof of the absence of malice on his part in suing out the writ. * * * The evidence in question was offered, not in mitigation of a wrong admitted, but to defeat an alleged ground of recovery which was fully denied.” In the following cases it is directly held that evidence to show probable cause and the nonexistence of malice is admissible under a general denial: Folger v. Washburn, 137 Mass. 60;Griffen v. Chubb, 7 Tex. 603;Harlan v. Jones (Ind. App.) 45 N. E. 481;Kellog v. Scheuerman (Wash.) 51 Pac. 344. Appellee cites some cases from this court in which advice of counsel was specially set up as a defense in actions like that at bar, and argues from this that the rule has been generally considered to require that such a defense be affirmatively pleaded. We find, however, in Johnson v. Miller (a case that was several times in this court), that in 63 Iowa, 529, 17 N. W. 34, the answer was a general denial, and in 69 Iowa, 562, 29 N. W. 743, and 82 Iowa, 693, 47 N. W. 903, and 48 N. W. 1081 (presumably on the same pleadings, for there is nothing to indicate a change of issues), evidence of advice of counsel was admitted. This seems to have been the case, also, in Logan v. Maytag, 57 Iowa, 107, 10 N. W. 311. Our conclusion on this branch of the case is that the court erred in not receiving this testimony.

2. Over defendant's objection, the court admitted in evidence the following judgment entered in the criminal proceeding: “It appearing to the court that this prosecution was found at the instance of a private prosecutor, to wit, Thomas J. Johnson, as shown by his own uncontradicted testimony, and the court being satisfied that the prosecution was instigated by malice, and without probable cause, the costs herein are taxed to said Thomas J. Johnson, and judgment rendered herein against him therefor, to which said Thomas J. Johnson excepts.” We have serious doubts of the admissibility of this evidence, in any view of the case. We need, however, consider only one ground of defendant's objection. Johnson's name was not indorsed on the indictment, as...