Polzin v. Lischefska

• Decision Date: 17 July 1925
• Docket Number: No. 24609.,24609.
• Citation: 164 Minn. 260,204 N.W. 885
• Parties: POLZIN v. LISCHEFSKA.
• Court: Minnesota Supreme Court

204 N.W. 885

164 Minn. 260

POLZIN v. LISCHEFSKA.

No. 24609.

Supreme Court of Minnesota.

July 17, 1925.

Appeal from District Court, Brown County; I. M. Olsen, Judge.

Action by Ed. Polzin against Henry Lischefska. Judgment for defendant notwithstanding a verdict for plaintiff, and plaintiff appeals. Reversed without prejudice to a motion for a new trial.

T. O. Streissguth, of New Ulm, for appellant.

Alexander Seifert, of Springfield, and Albert Hauser, of Sleepy Eye, for respondent.

TAYLOR, C.

This is an action for malicious prosecution in which the plaintiff had a verdict, and the court rendered judgment for defendant notwithstanding the verdict. Plaintiff appeals.

Plaintiff was indicted for drawing a check on the First National Bank of Springfield and delivering it to defendant in payment for goods purchased, knowing that he had no funds or credit with the bank for the payment of the check. He was arrested on a bench warrant, and thereafter tried and acquitted. This action followed.

To establish his cause of action, plaintiff must prove that the criminal prosecution was instituted by defendant without probable cause and maliciously. Hanowitz v. Great Northern Ry. Co., 122 Minn. 241, 142 N. W. 196; Lammers v. Mason, 123 Minn. 204, 143 N. W. 359; Cox v. Lauritsen, 126 Minn. 128, 147 N. W. 1093. It is firmly settled that the question whether the established facts in a particular case constitute probable cause is for the court; and, upon appeal, will be determined by this court by weighing the evidence as if originally presented here. Cox v. Lauritsen, 126 Minn. 128, 147 N. W. 1093; Williams v. Pullman Co., 129 Minn. 97, 151 N. W. 895, Ann. Cas. 1916E, 374; Eastman v. Leiser Co., 148 Minn. 96, 181 N. W. 109. But it is the province of the jury, in this as well as in other cases, to determine disputed questions of fact; and the court accepts and adopts their findings of fact if such findings are reasonably supported by the evidence.

That plaintiff issued the check in question and had no funds in the bank to meet it is conceded. The statute makes these facts prima facie evidence of an intent to defraud. G. S. 1923, § 10361. The indictment returned by the grand jury is also prima facie evidence of reasonable cause for instituting the prosecution. Casey v. Dorr, 94 Ark. 433, 127 S. W. 708, 140 Am. St. Rep. 124, 21 Ann. Cas. 1046, and note; Schott v. Indiana N. L. I. Co., 160 Ky. 533, 169 S. W. 1023, Ann. Cas. 1916A, and note. That plaintiff was acquitted at the trial is no evidence that the prosecution was instituted without probable cause. Hanowitz v. Great Northern Ry. Co., 122 Minn. 241, 142 N. W. 196; also note in 24 A. L. R. 261. The above facts would clearly establish probable cause for the prosecution if nothing further appeared. The question presented is whether plaintiff has overcome the probative force of these facts, and shown affirmatively that defendant had no reasonable ground for believing him guilty of the offense.

Defendant is a merchant at Springfield, and plaintiff operated a rented farm near there. All his property was covered by chattel mortgages. His version of the transaction is, in brief, that in November, 1920, he bought a bill of goods amounting to $17.39; that defendant refused to charge them and wanted a check; that he said he could not give a check for he had no money in the bank; that defendant said that was all right, he would take a check dated thirty days ahead to give time to get the money; that defendant drew the check and he signed it; that in March, 1922, some fifteen months later, he went to defendant's store to buy some wool fat for a neighbor who had requested him to do so and had given him 50 cents to pay for it; that defendant asked him to pay the check, to which he replied that he had no money except the 50 cents given him by the neighbor to pay for the wool fat; that defendant said the check was pretty old and he better renew it; that he did renew it by giving the check now in question; and that he told defendant he had no money and defendant promised to hold the check until he got the money. This check was dated on the day it was drawn, March 21, 1922.

Defendant's version of the transaction is, in brief, that plaintiff made three purchases of merchandise—one on October 20, 1920, amounting to $5.33, one on November 17, 1920, amounting to $3.98, and one on March 21, 1922, the date of the check, amounting to $8.08; that...