Miles v. Walker
| Decision Date | 17 December 1902 |
| Docket Number | 12,344 |
| Citation | 92 N.W. 1014,66 Neb. 728 |
| Parties | WILLIAM H. MILES ET AL. v. CHARLES WALKER ET AL |
| Court | Nebraska Supreme Court |
ERROR from the district court for Frontier county. Action in the nature of case, for malicious prosecution. Defense, advice of counsel. Tried below before NORRIS, J. Verdict and judgment for $ 30. Affirmed.
AFFIRMED.
Searle for plaintiffs in error.
Charles H. Tanner and White, contra.
HASTINGS C. LOBINGIER and KIRKPATRICK, CC., concur.
The errors claimed in this action for malicious prosecution, in which the plaintiff obtained judgment and which defendants bring here, are ten in number: (1) Insufficiency of the evidence; (2) refusal of evidence of other similar acts of plaintiff as a ground for probable cause to believe him guilty as charged by the defendant Miles; (3) refusal of an instruction that plaintiff must prove by a fair preponderance of the evidence that defendants instituted the prosecutions complained of, that they were without probable cause and were malicious, and the giving of one instead that plaintiff was alleging such facts and must prove by a preponderance of the evidence the material allegations of the petition; (4) the giving in instruction 3 of an unfair definition of malice and of undue prominence to certain evidence; (5) defining in the fifth instruction probable cause as "circumstances sufficiently strong to warrant a cautious man in believing the accused person guilty"; (6) error in telling the jury that the discharge of plaintiff was a fact to be considered "as showing that the defendant was innocent of the crime charged"; (7) instructing the jury that they might include 'damages for any injury to plaintiff's reputation'; (8) that the tenth instruction given was unfair and prejudicial and submitted matters as to which there was no testimony; (9) the instructions were contradictory and misleading; and (10) that there was error in admitting as evidence the court reporter's notes taken in another case in which defendant W. H. Miles had testified.
The insufficiency of the evidence is claimed on the ground that the undisputed evidence shows a full disclosure to the county attorney and also to Charles H. Tanner, defendants' counsel, and the institution of the action on the county attorney's advice.
The complaint on which plaintiff was arrested was first filed in county court, and charged that plaintiff, jointly with his father, had wantonly and maliciously thrown down and injured a pasture fence belonging to Nellie Miles. On a hearing before the county judge, plaintiff was discharged. The following day plaintiff was again arrested on the same charge. This time he was brought before a justice of the peace at Curtis, Nebr. He was again discharged and another complaint lodged against him for the same offense before another justice of the same county. This complaint was also dismissed. A fourth one was filed before a third justice of the county. This last one was dismissed four days later by the prosecuting witness. The last two complaints were signed by Charles H. Tanner by procurement, as is claimed, of Miles and his wife. A fifth complaint seems to have been filed by Mr. Tanner before the county judge, but never brought to hearing.
The complaints were all for the same offense, and apparently brought under section 103 of the Criminal Code of this state, which imposes a fine of not more than $ 100 or imprisonment for not more than thirty days, or both, for wantonly or maliciously throwing down a fence around another's inclosure. There seems to have been a preliminary hearing before the county judge on the first complaint, and it was dismissed. The complaints before Justice Taylor and Justice Sparhawk were dismissed apparently on the ground of the former hearing before the county judge. The defendants Miles and his wife seem to have determined to have another hearing of their complaint on its merits, principally in order to introduce testimony of their daughter of twelve years to an admission of Charlie Walker's that he tore the fence down. The specific dispute in the case as to the facts seems to have been whether Charles Walker admitted to W. H. Miles that he and his father took down the fence, and whether the fence in question was not wholly upon premises known as the Ballantine ranch, held by the Walkers under lease. This admission was denied by Walker, and the fact of the fence being on the Ballantine premises leased by the Walkers seems to be now admitted. The county attorney says he suggested that this would be a defense, and Charles H. Tanner swears that he advised the defendants that it could not be.
The evidence as to the completeness and good faith of Mr. Miles's statement to the attorneys is so far conflicting that it seems to have included statements of fact which are disputed and of which W. H. Miles claimed to have personal knowledge. If the jury decided that these were false, they would be correct in saying that the advice of attorneys was no protection. We are not able to say, as a matter of legal conclusion, that the jury should have found for defendants because of such advice.
Evidence was tendered that plaintiff had taken down other fences that connected with those on the Ballantine ranch at other times within the preceding two years. In the offer was included the further fact that a statement of this and of its justification by the Walkers on the ground of instructions from Ballantine and also of legal right to take the fence away as being on the Ballantine ranch, had been communicated to W. H. Miles. The latter part of the offer might possibly have been material. If such matters had been told Mr. Miles, and he believed them, it would tend to create a bona-fide belief in his mind that Walker took down the fence as charged in these complaints. But the question asked and ruled out, was simply as to the fact of Walker's removing other fences, which was, of course immaterial. What Miles in good faith supposed, was the only thing in question as to the other fences. There was no error in refusing to permit this question. Carson v. Edgeworth, 43 Mich. 241, 5 N.W. 282; Bullock v. Lindsay, 9 Gray 30. Even the rest of the offer was of very doubtful admissibility.
The...
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