Monske v. Klee

• Decision Date: 01 December 1923
• Citation: 38 Idaho 314,221 P. 152
• Parties: FRED A. MONSKE, Respondent, v. HENRY KLEE, Appellant
• Court: Idaho Supreme Court

221 P. 152

38 Idaho 314

FRED A. MONSKE, Respondent, v. HENRY KLEE, Appellant

Supreme Court of Idaho

December 1, 1923

MALICIOUS PROSECUTION-EVIDENCE-PROOF OF MALICE-EVIDENCE OF OTHER JUDICIAL PROCEEDINGS - INSTRUCTIONS - PROOF OF GOOD REPUTATION-DEFENSE OF GOOD FAITH ON ADVICE OF COUNSEL.

1. In an action for malicious prosecution, evidence of the conduct and declarations of the parties litigant, whether occurring before or after the time of the original proceeding connected with the transactions in question and tending to prove intent, is admissible upon the question of malice.

2. In an action for malicious prosecution, evidence of other judicial proceedings tending to establish malice is admissible.

3. Held that the trial court committed no error in the admission of certain exhibits.

4. Where instructions taken as a whole correctly state the law and are not inconsistent, but may be reasonably and fairly harmonized, it will be assumed that the jury gave due consideration to the entire charge, and was not misled by any isolated portion thereof.

5. In an action for damages for malicious prosecution, the plaintiff may show that he had a good reputation in the particular involved in the criminal prosecution brought against him, particularly if the defendant knew, or was in a position to know, the reputation of the plaintiff in that respect when he instituted the prosecution.

6. In an action for malicious prosecution, where one of the defenses was that defendant acted in good faith upon the advice of counsel, held that this question was fairly submitted to the jury by the instructions of the court, and that the evidence was sufficient to sustain the verdict.

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Charles F. Reddoch, Judge.

Action for malicious prosecution. Judgment for plaintiff. Affirmed.

Affirmed.

Delana & Delana and Martin & Martin, for Appellant.

Evidence of malice on the part of the defendant against any other person than the plaintiff is not admissible. (Hamer v First Nat. Bank, 9 Utah 215, 33 P. 941; Shanks v Robinson, 130 Ind. 479, 30 N.E. 516; Coleman v. Treece, 149 Mo.App. 61, 130 S.W. 56; Saunders v. First Nat. Bank, 85 Wash. 125, 147 P. 894.)

If the article published in a newspaper contains more than appears from the complaint and proceedings thereon, it should not be admitted in evidence unless it is proven that the defendant authorized the additional or different material in the publication. (Duval v. Inland Nav. Co., 90 Wash. 149, 155 P. 768; Fletcher v. Chicago & N.W. Ry. Co., 109 Mich. 363, 67 N.W. 330.)

Where evidence of reputation of the plaintiff's character is admitted, it must be proven that the plaintiff's reputation was known to the defendant. (McIntire v. Levering, 148 Mass. 546, 12 Am. St. 594, 20 N.E. 191, 2 L. R. A. 517; Blizzard v. Hays, 46 Ind. 166, 15 Am. Rep. 291.)

Where the plaintiff did actually commit an offense, but was mistakenly charged under the wrong statute or with the wrong offense, that would not entitle him to escape criminal prosecution, nor entitle him to recover in an action against the defendant for malicious prosecution. (Nettleton v. Cook, 30 Idaho 82, 163 P. 300, L. R. A. 1917D, 1194; Sears v. Hathaway, 12 Cal. 277.)

Where the evidence relied upon by the prosecuting witness for conviction is laid before an attorney, or the witnesses are brought before an attorney for his examination and thereafter said attorney advises a prosecution, there is a complete showing of probable cause. (Kelly v. Midland G. W. R. Co., 18 L. R. A., N. S., 52 (note); Berger v. Wild, 130 F. 882, 66 C. C. A. 79; Moore v. Northern P. Ry. Co., 37 Minn. 145, 33 N.W. 334; Singer Sewing Machine Co. v. Dyer, 156 Ky. 156, 160 S.W. 917; Huntington v. Gault, 81 Mich. 144, 45 N.W. 970; Baldwin v. Capitol Steam Laundry Co., 109 Minn. 38, 122 N.W. 460.)

The rule that advice of counsel is a complete defense applies with greater force where the counsel advising is the county attorney or public prosecutor. (Moore v. Northern P. Ry. Co., 37 Minn. 147, 33 N.W. 334; Johnson v. Miller, 69 Iowa 562, 29 N.W. 743; Sebastin v. Cheney, 86 Tex. 497, 25 S.W. 691; Laughlin v. Clawson, 27 Pa. 328; Haines v. Atchison T. & S. F. Ry. Co., 108 Kan. 360, 195 P. 592.)

E. G. Davis and Eldridge & Morgan, for Respondent.

"Prior transactions occurring, and the personal relations previously existing between the parties to the present action, and feelings of hostility, enmity and ill will formerly subsisting, may be shown upon the question of malice."

"Evidence of other judicial proceedings tending either to establish malice or to rebut the inference of malice is admissible." (26 Cyc. 99, 100.)

All of the instructions given in a case must be read and considered together, and where taken as a whole they correctly state the law and are not inconsistent, it will be assumed that the jury gave due consideration to the whole charge, and was not misled by any isolated portion thereof (Raide v. Dollar, 34 Idaho 682, 203 P. 469; Tilden v. Hubbard, 25 Idaho 677, 138 P. 1133; Osborn v. Cary, 28 Idaho 89, 152 P. 473; Cady v. Keller, 28 Idaho 368, 154 P. 629; Taylor v. Lytle, 29 Idaho 546, 160 P. 942; Ramon v. Interstate Utilities Co., 31 Idaho 117, 170 P. 88; Brayman v. Russell & Pugh Lumber Co., 31 Idaho 140, 169 P. 932.)

"Instructions asked are properly refused when they are not based upon some evidence material to the controversy, although as abstract principles of law they are correct." (Johnson v. Fraser, 2 Idaho 404, 18 P. 48; Gwinn v. Gwinn, 5 Idaho 271, 48 P. 295.)

Whether or not advice of counsel is sought and given in good faith are questions for the jury. (Castles v. Lynch, 36 Idaho 636, 212 P. 970; DeLamater v. Little, 32 Idaho 358, 182 P. 853.)

VARIAN, Commissioner. McCarthy, William A. Lee and Wm. E. Lee, JJ., concur.

OPINION

VARIAN, Commissioner.

-- This is an action for malicious prosecution. The parties reside upon neighboring farms about six miles west of Boise. Appellant's family consisted of himself, wife and two daughters, aged nine and eleven years, respectively, at the date of the prosecution complained of. At that time respondent's family consisted of himself and wife. They had no children.

On November 5, 1920, appellant swore to a complaint in Boise Justice's Precinct, Ada County, Idaho, before Carl H. Norris, Justice of the Peace, charging that respondent Monske:

"On the 3rd and 4th day of November, 1920, at in the county of Ada and the State of Idaho then and there being, did then and there maliciously and wilfully and unlawfully disturb the peace and quiet of persons, to wit: Marie and Hulda Klee, minor children of affiant, by using vulgar, profane and indecent language within the presence and hearing of said children, in a loud and boisterous manner, etc."

On his arraignment on November 6th, respondent pleaded not guilty to said charge, and the cause was set for trial on November 12, 1920, at 10 o'clock A. M. A jury was called for that date, and at the time set, respondent appeared and the prosecuting attorney dismissed the action.

The evidence discloses many petty bickerings and mis-understandings between the parties and their families for two or three years prior to the institution of the present action. The following occurrences may be mentioned:

Appellant caused the arrest of Anna Monske, wife of respondent, in May, 1919, charging her in the justice's court with interfering "with the comfort and enjoyment of life by continually and maliciously exposing to view of others the person of another, to wit: Joe Best, in the presence of children of tender years." The defendant was arrested, but upon explaining the acts complained of to the justice of the peace, she was discharged without trial.

In August, 1920, appellant caused the arrest of respondent, charging him in the justice's court with disturbing appellant's peace and quiet by offensive conduct, vile and offensive epithets, and by threatening, traducing and challenging to fight appellant. Respondent pleaded not guilty, waived a jury and without the aid of counsel for defendant, the cause was tried to the court. The parties to the present action were the only witnesses sworn or examined. Monske was found guilty by the court and fined $ 5 and costs, amounting to $ 3.40, both of which he paid.

In April, 1920, respondent Monske caused the arrest of appellant Henry Klee on a charge of assault with intent to commit murder. After a preliminary examination on this charge, the defendant was held to answer. A month later, in May, 1920, the prosecuting attorney of Ada county, now of counsel for appellant in this action, filed a new complaint in the same justice's court, charging appellant, on the date of the offense for which he was held to answer, with pointing a loaded pistol at Fred Monske (respondent) without malice. To this last complaint appellant pleaded guilty and was fined $ 50. It appears from the record that both charges, the one filed in April and the one filed in May, are based upon the same state of facts, and consist of the circumstances regarding the firing of two shots by appellant at respondent on April 7, 1920, from a 38-caliber revolver. The bullet striking respondent did not imbed itself deeply in respondent's arm, and was removed by him without surgical assistance.

The record also shows that the minor children of appellant, Marie and Hulda Klee, entered the Monske home during the absence of respondent and his wife, and took therefrom some raisins which they ate, and a wrist watch and ring, which they found in a trunk in respondent's house. They are also charged with taking cream, strawberries and cake. The children deny this, but admit taking the...