Redahl v. Stevens
| Decision Date | 18 March 1933 |
| Docket Number | 6094 |
| Citation | 250 N.W. 534,64 N.D. 154 |
| Court | North Dakota Supreme Court |
On Rehearing October 25, 1933, Reported at 64 N.D. 154 at 161
Appeal from the District Court of Adams County, Lembke, J Action for malicious prosecution. From a judgment for the plaintiff and from an order denying his motion for a new trial, the defendant appeals.
Affirmed.
Instructions must not omit any material element of the cause of action. 38 C.J. 511.
Instructions on subject of probable cause should state the principles of law. 38 C.J. 513; Staunton v. Goshorn, 94 F. 52.
It is the duty of the court to present to the jury the substantial issues in the case and to state to them the principles of law governing the rights of the parties, whether any specific instructions are requested by counsel or not. Barton v. Gray (Mich.) 24 N.W. 638; Jenkins v. Gilligan (Iowa) 108 N.W. 237.
In an action for malicious prosecution, where the facts are disputed and reasonable men might differ upon conclusions to be drawn therefrom, the question of probable cause is for the jury upon proper instructions. Shong v. Stinchfield, 47 N.D. 495; Wadlington v. Coyne, 49 S.D. 563, 207 N.W. 539; Hanowitz v. Great Northern R. Co. (Minn.) 142 N.W. 196; Hall v. American Invest. Co. (Mich.) 217 N.W. 18; Putnam v. Prouty, 24 N.D. 517, 140 N.W. 93; Jensen v. Halstead (Neb.) 85 N.W. 78.
Instructions should correctly state the law governing the case. Parker v. Parker (Iowa) 71 N.W. 421; Low v. Greenwood, 30 Ill.App. 184; Franklin v. Irvine (Cal.) 198 P. 647.
Instructions must not omit any material element of the cause of action or defense. Griffin v. Dearborn (Mass.) 96 N.E. 681; Webb v. Byrd (Mo.) 219 S.W. 683.
Inasmuch as probable cause and malice must have existed in order to entitle plaintiff to recover, the court should properly instruct the jury in that regard. Morrell v. Martin, 17 Ill.App. 336; Vorce v. Oppenheim, 55 N.Y.S. 596.
L. C. Broderick and Morrison & Skaug, for respondent.
The appellate court will indulge all reasonable presumptions in favor of the correctness of the judgment, order or decree from which the appeal was taken. 4 C.J. 731.
Instructions are presumed to be correct under the circumstances, and as applied to the evidence, if the record leaves any room for presumptions. Campbell v. Peterman, 56 Ind. 428; Southern & N.A.R. Co. v. Brown, 53 Ala. 651; 1 Blashfield, Instructions to Juries, § 375; Haggerty v. Strong, 10 S.D. 585, 74 N.W. 1037; State v. Peltier, 21 N.D. 190, 129 N.W. 451; State v. Woods, 24 N.D. 156, 139 N.W. 321; State v. LaFlame, 30 N.D. 489, 152 N.W. 810.
The meaning of ordinary words, when used in their usual and conventional sense, need not be explained to the jury. 38 Cyc. 1686; Louisville Press v. Tennelly, 49 S.W. 15; Mitchell v. Smith, 14 S.W.2d 46; Cassenille v. Bennen, 294 P. 748; Kerr v. Tysseling, 239 N.W. 233; American Fidelity & C. Co. v. Williams, 34 S.W.2d 396; Guitar v. Wheeler, 36 S.W.2d 325.
Where the court has covered the law applicable to the case and the defendant desires more explicit instructions on the subject they should present them to the court in writing with the request that they be given. Carr v. Mpls. St. P. & S. Ste. M.R. Co. 16 N.D. 217, 112 N.W. 972; Landis v. Fyles, 18 N.D. 587, 120 N.W. 566; State v. Banik, 21 N.D. 417, 131 N.W. 262; Swords v. McDonnell, 31 N.D. 494, 154 N.W. 258.
Paul W. Boehm and F. M. Jackson, for appellant.
This action was brought to recover damages for malicious prosecution. The case was tried to a jury. The plaintiff had a verdict. The defendant thereafter moved for judgment notwithstanding the verdict or for a new trial. His motion was denied and he perfected this appeal from the judgment and order. The appeal is on the judgment roll. No statement of the case was settled, so the testimony is not before us. The defendant challenges the propriety of the instructions given and the only questions for our determination are as to whether this challenge is well taken, and if so, whether the instructions were prejudicially erroneous.
Plaintiff in his complaint alleged that the defendant maliciously, and without probable cause, filed a criminal charge and complaint before a justice of the peace charging the plaintiff with having committed a criminal offense; that the plaintiff was thereupon arrested and tried on such charge and was found not guilty; that on account of such prosecution he suffered damages which he seeks to recover. The defendant in his answer first made a qualified general denial; and then he alleged that he was a peace officer; that as such officer he arrested the plaintiff for disturbing the public peace; that thereupon the plaintiff, resisting the arrest, escaped from the defendant; that thereafter the defendant made formal complaint before a police magistrate and caused the plaintiff to be arrested on a charge of resisting an officer in the lawful discharge of his duties and escaping while under lawful arrest; that the "complaint so made and the warrant thereafter issued and the facts therein stated were true."
The principal challenge of the defendant on this appeal, and the only one we can consider, is directed at the instructions. The defendant in his specifications of error recites generally that the court erred in its instructions and quotes, seriatim, a large portion thereof to which he takes exception. He does not, however, point out the particular parts of the instructions which he claims to be erroneous. He specifies generally that the court erred in failing to properly state the law to the jury; in failing to define malice and probable cause; and in charging with respect to the defense that the prosecution was begun on advice of counsel that the burden was on the defendant to establish this defense.
The record is not before us. We have no way of ascertaining what evidence the jury had to consider when it passed upon the merits of the case under the instructions as given by the court. So we must presume that the instructions were appropriate to the issues presented by the evidence and we will not hold them erroneous unless they are abstractly wrong. State v. Peltier, 21 N.D. 188, 129 N.W. 451; State v. Woods, 24 N.D. 156, 139 N.W. 321; State v. LaFlame, 30 N.D. 489, 152 N.W. 810; Isensee Motors v. Godfrey, 61 N.D. 435, 238 N.W. 550.
The defendant urges in his brief and contended on argument that the instructions generally were erroneous in that they did not state the elements constituting a cause of action for malicious prosecution. An examination of the charge, however, discloses that there is no foundation for this contention. The court charged:
"And in these two cases of malicious prosecution, before either of the plaintiffs can recover, they must establish by a preponderance of the evidence that the defendant, Tom Stevens, maliciously and without probable cause, subsequent to the assault and battery heretofore alleged, caused their arrest by filing a criminal charge and complaint against them; that they were subsequently tried upon said charge and found not guilty, and that by reason of the aforesaid and the notoriety and publicity given, their reputation was injured and they were caused a great deal of trouble and expense, and suffered great humiliation in mind and body and were damaged thereby. . . ."
Thus the jury were instructed that in order to enable the plaintiff to recover he must establish that he had been prosecuted criminally by the defendant; that the prosecution had terminated in his favor; that such prosecution was malicious and without probable cause and resulted in his damage. This is a sufficient statement of the proofs requisite to a recovery for malicious prosecution. See Merchant v. Pielke, 10 N.D. 48, 84 N.W. 574.
The defendant further insists that the instructions are insufficient and erroneous for the reason that the court failed to define the terms "malice" and "probable cause." So far as appears from the record, there was no request that these terms be defined. In the absence of such request, the failure to define "malice" is not ground for reversal. This term has a general and definite meaning as ordinarily used. If there is any ground for complaint because of the use of the word without definition, it is on the part of the plaintiff rather than of the defendant, for the generally accepted meaning of the word is broader than the meaning essential to malice in actions of this sort. Malice, generally, connotes "enmity of heart; malevolence; ill will; a spirit delighting in harm or misfortune to another; a disposition to injure another, a malignant design of evil." Webster's New International Dictionary. On the other hand, . Kolka v. Jones, 6 N.D. 461, 71 N.W. 558, 66 Am. St. Rep. 615. See also Wuest v. American Tobacco Co. 10 S.D. 394, 73 N.W. 903.
Again, with respect to the defendant's contention that the court failed to define probable cause to the jury, it is sufficient to say that the court again and again told the jury that the plaintiff could not recover unless he established by a fair preponderance of the evidence that the prosecution was begun without probable cause, and then, speaking more specifically, the court charged:
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