Mielke v. Rode
| Decision Date | 26 July 1929 |
| Citation | 226 N.W. 507,58 N.D. 465 |
| Court | North Dakota Supreme Court |
Rehearing Denied August 13, 1929.
Appeal from the District Court of Stutsman County Jansonius, J.
Reversed and dismissed.
Buck & Buck, for appellant.
The law favors the prosecution of crimes and affords protection to the citizen prosecuting another man in good faith and on reasonable grounds, as is essential to public justice. Shafer v. Hertzig, 92 Minn. 171, 99 N.W. 796.
"It is enough if the prosecutor upon fair information and just grounds of belief proceeds with such a degree of impartiality, reasonableness and freedom from prejudice, as can be justly expected of men of ordinary prudence and caution, acting without malice." Casey v Sevatson, 30 Minn. 516, 16 N.W. 407.
"In an action for malicious prosecution the burden is upon the plaintiff to show by a preponderance of the evidence that the prosecution was brought by the defendant with malice and without probable cause." Venum v. Huston, 38 Neb. 293, 56 N.W. 497.
There can be no recovery unless both malice and want of probable cause are shown by the plaintiff. Robertson v. Dyvedahl, 14 S.D. 126, 84 N.W. 486.
"However innocent the plaintiff may have been, it is enough for the defendant to show that he had reasonable grounds for believing him guilty at the time the charge was made." Foshay v. Furgeson, 2 Denio (N.Y.) 617.
"It is also the settled law that what facts and whether peculiar facts constituted probable cause is a question of law for the court, but what facts exist in a particular case where there is a dispute as to them is a question exclusively for the jury." Smith v. Munch (Minn.) 68 N.W. 19.
"If a prosecutor has fairly submitted to his counsel all the facts that he knows are capable of proof and has acted bona fide on the advice given, he is not liable in an action for malicious prosecution, even though the facts did not warrant the advice and prosecution." Poupard v. Dumas (Mich.) 63 N.W. 301.
"Actual malice and bad faith are never presumed by the court." Krouse v. Bishop (S.D.) 100 N.W. 434.
Knauf & Knauf, for respondent.
A motion for a new trial presents to the trial court an opportunity to review the trial of the cause and to reflect on the different aspects of the case, the admission and rejection of the testimony, and when so reviewed by the court, the matter passed upon and decided by the trial court, the decision becomes an adjudication and unless appealed from within sixty days is final. Heald v. Strong, 24 N.D. 120, 138 N.W. 1114; Hedderich v. Hedderich, 18 N.D. 488, 123 N.W. 276; Chaffee Bros. Co. v. Powers Elevator Co. 41 N.D. 94, 170 N.W. 315.
The sufficiency of the evidence to sustain the verdict is not subject to review on appeal from the judgment. Hedderich v. Hedderich, 18 N.D. 120.
On December 1st, 1927, the plaintiff was arrested on the charge of malicious mischief. The complaint was made by the defendant who charged the plaintiff with committing depredations on the farm of the defendant November 28, 1927. The hearing before the justice commenced December 1st. After some testimony was taken the hearing was continued until December 17th, and again continued till February 17th, 1928. However, on February 16th, 1928, the state's attorney moved for dismissal. The case was dismissed, and the plaintiff discharged.
The plaintiff brings this action for malicious prosecution charging that the criminal proceedings were instituted with malice and without probable cause, that he was damaged in the sum of $ 2,850 actual damages and further he asks $ 2,500 exemplary damages.
The answer admits the making of the complaint, denies any malice, alleges that defendant had every reason to believe the plaintiff was responsible for the depredations committed, that he stated to the state's attorney of Stutsman county "all of the facts here within the knowledge of the defendant herein with reference to said acts of malicious mischief, and the connection of the plaintiff herein with said acts, and that said matter was thoroughly and fully presented to the state's attorney of Stutsman county, North Dakota" and that the state's attorney "did on the 29th day of November 1927 prepare a criminal complaint charging the plaintiff herein with malicious mischief." He then alleges that he signed the complaint and filed it with the justice of the peace and that he acted upon the advice of the state's attorney, "after he had fully and fairly stated all of the facts known to the defendant with reference to said matter."
The jury returned a verdict for the plaintiff for $ 900 actual damages and $ 100 exemplary damages. The defendant moved for judgment notwithstanding the verdict or for a new trial and on this being denied he appeals to this court.
The specifications of error on appeal contain objections to certain rulings of the court in the admission of evidence, an exception to one portion of the charge to the jury, and allegations of error for failure to grant judgment notwithstanding the verdict.
In his brief the appellant says the issues of the case are:
It is conceded that if the defendant made a full, fair and complete disclosure to the state's attorney of all the material facts within his knowledge, and of all facts which he had reasonable ground to believe existed at the time of making the statement, including facts which he could have ascertained by reasonable diligence, and then was advised by the state's attorney to make the complaint, this would be a complete defense. There is some diversity of opinion among the different jurisdictions regarding the extent of the disclosures which the complaining witness must make. Some courts hold that it is not necessary for him to disclose more than the facts which are within his knowledge. See Holliday v. Holliday, 123 Cal. 26, 55 P. 703; King v. Apple River Power Co. 131 Wis. 575, 120 Am. St. Rep. 1063, 111 N.W. 666, 11 Ann. Cas. 951. But in this jurisdiction the rule is as stated in Shong v. Stinchfield, 47 N.D. 495, 183 N.W. 268: "One seeking to rely upon the advice of counsel as a defense in an action for malicious prosecution must show that he communicated to such counsel all of the facts within his knowledge and all that he could ascertain with reasonable diligence and inquiry and that he acted on the advice received honestly and in good faith in causing the arrest." See also Merchant v. Pielke, 10 N.D. 48, 84 N.W. 574.
According to the record the facts which the defendant related to the state's attorney are briefly; that during the early fall of 1927 a series of depredations took place on the farm home of the defendant -- the fences were cut in various places, machinery taken apart and overturned, holes made in the granary permitting the grain to escape, gasoline engine sanded, water put in the gasoline, cattle cut loose from the stalls, ropes and harness straps cut; dirt and gravel placed in the cylinder head of his automobile and other acts of like nature; that this happened is borne out by the testimony of the defendant, his wife, his son Albert, and his two brothers-in-law. Defendant set watch, consulted his relatives and attempted to ascertain the perpetrator. About six o'clock on the evening of November 28th, the son Albert, a boy of about sixteen, came into the house stating he had seen the plaintiff near the west granary and that this plaintiff had run away through the woods toward the road; almost immediately afterwards two smaller children came in stating they had seen the lights of a car parked on the highway; shortly after a brother-in-law arrived and went with the son to the west granary finding tracks around the granary and from there to the well and to the machinery, finding both well and machinery interfered with; from there the tracks went through the woods. The tracks were followed to a point on the highway where it was found that a car had been parked. The defendant sent his son over to the home of John Rode the defendant's brother on some errand. The son returned stating that he saw the Mielke boys there, and that they told him they were returning gasoline which they had borrowed. The defendant, his brother-in-law and his son then went to John Rode's place and found the Mielke boys there. Some conversation took place between them in regard to this gasoline which was being returned and the Mielke boys told them they were not returning gasoline, never had borrowed any, and had not told Albert they were returning gasoline. Mrs. John Rode testifies they did not return any gasoline. The record shows that all of these facts were disclosed to the state's attorney except the conversation about returning the gasoline. The state's attorney testifies that the defendant so stated and defendant testified he so told the state's attorney.
There is no contention on the part of the plaintiff that the defendant knew anything else about the case than what is stated; there is no claim the defendant suppressed any fact which he knew except the conversation regarding the gasoline. The state's attorney...
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