McIntyre v. Meyer
| Decision Date | 21 July 1965 |
| Docket Number | No. 10187,10187 |
| Citation | 136 N.W.2d 351,81 S.D. 417 |
| Parties | Lorin McINTYRE, Plaintiff and Respondent, v. Ed MEYER, Defendant and Appellant. |
| Court | South Dakota Supreme Court |
Herman & Wernke, Gregory, for defendant and appellant.
G. F. Johnson, Gregory, for plaintiff and respondent.
This is an action for malicious prosecution in which plaintiff alleges defendant maliciously and without probable cause charged him with the crime of assault and battery. He was found 'not guilty' by a jury in justice court and asks for $2,500 compensatory and $2,500 exemplary damages. The jury awarded a verdict for $1,750 without separation as to the kind of damages allowed. Defendant appeals contending the evidence is insufficient to support the verdict as he acted in good faith, upon the advice of his attorney, in commencing the criminal prosecution against plaintiff.
The evidence shows both parties farm or ranch in the same neighborhood in Gregory County. Both own or raise cattle and have pastures separated by a public road. Plaintiff, Lorin McIntyre, is 52 years of age and defendant, Ed Meyer, is 69. There is no evidence of hostility, ill will, or animosity between the two until a controversy over a calf occurred which precipitated this action.
According to plaintiff he owned a muley, white-faced calf which was a family pet because it had been sickly when young and had been bucket fed. Sometime during the spring of 1962 the calf was gone for three days. On May 15, 1962, some time after the calf returned, defendant Meyer drove into McIntyre's farm yard. It was Sunday morning. The conversation and relations between the two were friendly until defendant said to McIntyre 'You have a calf over here that belongs to me.' McIntyre replied: 'I don't know of any calf of yours over here, but we'll go and look.' They walked out in the cattle yard where defendant picked out the pet calf and said 'There, that calf is mine.' McIntyre said it wasn't and defendant replied 'Yes, that's mine'. McIntyre then testified that Meyer started to chase the calf and 'I was going to stop him and I got ahead of him and struck him twice.' Defendant used no force to defend himself. After getting up from the ground defendant went to his jeep and left plaintiff's yard. There was an exchange of curses during defendant's departure.
After defendant returned home he called Frank Kucera and asked what should be done. Kucera called the sheriff. He advised defendant to see an attorney or the state's attorney. The following morning defendant consulted with a doctor about spitting blood and had his ribs X-rayed. Afterwards he sought the advice of his attorney, Dudley Herman. After relating the incident to his attorney he was advised that plaintiff had committed the crime of assault and battery and he should see the state's attorney. Three or four days later defendant went to the state's attorney who drew up the criminal complaint against plaintiff which defendant signed.
The elements of an action for malicious prosecution which a plaintiff must prove by a preponderance of the evidence are stated in Kunz v. Johnson, 74 S.D. 577, 57 N.W.2d 116, as follows:
(1) the commencement or continuance of an original criminal or civil judicial proceeding;
(2) its legal causation by the present defendant against plaintiff, * * *
(3) its bona fide termination in favor of the present plaintiff;
(4) the absence of probable cause for such proceeding;
(5) the presence of malice;
(6) damage conforming to legal standards resulting to plaintiff.
We are concerned here only with the element of probable cause. In this regard the advice of an attorney admitted to practice law in this state is conclusive of the existence of probable cause for initiating criminal proceedings in reliance upon the advice if it is (1) sought in good faith, and (2) given after a full disclosure of the facts within the accuser's knowledge and information. Sec. 666 Restatement Law of Torts. Jackson v. Bell, 5 S.D. 257, 58 N.W. 671. To obtain immunity under this rule defendant was not obligated to prove good faith and 'in the absence of proof of malice, other than proof that the plaintiff was acquitted, it is duty of the court to presume that the defendant acted in good faith, as actual malice and bad faith are never presumed by the court.'...
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Terminal Grain Corp. v. Freeman, s. 12258
...is sought in good faith and given after a full disclosure of the facts within the client's knowledge and information. McIntyre v. Meyer, 81 S.D. 417, 136 N.W.2d 351. See also Huntley v. Harberts, S.D., 264 N.W.2d The dismissal of the malicious prosecution counterclaim may further be sustain......
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Kaarup v. St. Paul Fire and Marine Ins. Co.
...proceeding against plaintiff. Bucher v. Staley, 297 N.W.2d 802 (S.D.1980); Terminal Grain Corp. v. Freeman, supra; McIntyre v. Meyer, 81 S.D. 417, 136 N.W.2d 351 (1965). Both Rudolph and Hayes are licensed attorneys in South Dakota. In an action for malicious prosecution the court determine......
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Huntley v. Harberts
...to justify the award and (2) the award was the result of passion and prejudice on the part of the jury. ISSUE ONE In McIntyre v. Meyer, 81 S.D. 417, 136 N.W.2d 351 (1965), this Court reiterated the elements of a cause of action for malicious prosecution which had been set forth in Kunz v. J......
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...slander action against Manuel primarily for an improper purpose is a "question of fact for the jury." Id. See also McIntyre v. Meyer, 81 S.D. 417, 136 N.W.2d 351, 353 (1965) (quoting Krause v. Bishop, 18 S.D. 298, 100 N.W. 434 (1904) in stating "actual malice and bad faith are never presume......