McAllister v. Kimberly-Clark Co.

• Citation: 173 N.W. 216,169 Wis. 473
• Parties: MCALLISTER v. KIMBERLY-CLARK CO. ET AL.
• Decision Date: 25 June 1919
• Court: United States State Supreme Court of Wisconsin

169 Wis. 473

173 N.W. 216

MCALLISTER

v.KIMBERLY-CLARK CO. ET AL.

Supreme Court of Wisconsin.

June 25, 1919.

Appeal from Circuit Court, Marinette County; Wm. B. Quinlan, Judge.

Action by Ernest McAllister against the Kimberly-Clark Company and two others. Judgment for plaintiff against the Kimberly-Clark Company and another, and they appeal. Reversed, unless the plaintiff elects to take judgment for the compensatory damages only.

The plaintiff with three others was arrested upon the charge of having stolen a certain piece of tarpaulin belonging to the defendant Kimberly-Clark Company at its plant in the village of Niagara, Marinette county. Upon the hearing before the justice, two of the defendants so charged pleaded guilty, and the case was then dismissed as to plaintiff and the other defendant at the suggestion of the justice of the peace. The complaint was sworn to by the defendant Stridde, who was resident superintendent at Niagara for the Kimberly-Clark Company and acted herein on its own behalf. The defendantMax Garber served the warrant in such proceeding, but on the trial the case was dismissed as to him.

The plaintiff alleges one cause of action for malicious prosecution and another for false imprisonment, both based upon the same transaction. The jury found against both defendants for each cause of action and assessed in each damages of $1,000 compensatory and $500 punitory, respectively.

Subsequent to verdict, the plaintiff withdrew its claim on account of the alleged false imprisonment, and judgment was entered for the compensatory and the punitory damages assessed for the malicious prosecution. From such judgment the defendants appealed.

Hooper & Hooper, of Oshkosh, for appellants.

Martin, Martin & Martin, of Green Bay, for respondent.

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

Defendants set up as a defense that, at the time of the swearing to the complaint before the justice of the peace upon which the criminal proceedings were prosecuted, the defendants had probable cause to believe, and did honestly believe, that the plaintiff was guilty of the crime charged in such complaint. They insist that there being no substantial dispute upon the facts, so far at least as they relate to such defense, there was such a situation presented as properly required the trial court, and now this court, to say that such defense was sustained as a matter of law.

[1][2] The defendant Stridde frankly admitted on the trial that up to the time of the arrest in question he had known the plaintiff as an honorable, honest man. This was material for the jury to consider. Woodward v. Mills, 61 Wis. 44, 57, 20 N. W. 728, 50 Am. Rep. 135. Plaintiff had been president of the village in which the defendant company's plant was located, and differences had arisen, and apparently considerable feeling engendered, out of questions arising from the administration of the village affairs. The property alleged to have been stolen was found covering the roof of the hunting shanty used by the party of four charged with the theft, but the testimony disclosed that it had been taken out there and placed on the roof before the plaintiff arrived. Without further detailing the evidence, we think the situation disclosed in the record herein was such that the court below was justified in submitting the question to the jury for them to determine whether or not there was a want of probable cause. Eggett v. Allen, 119 Wis. 625, 629, 96 N. W. 803;Haas v. Powers, 130 Wis. 406, 410, 110 N. W. 205.

With the determination of the jury that there was a want of probable cause and with the amount assessed by them as compensatory damages we cannot interfere.

[3] The defendants...