Redahl v. Stevens, 6094.

• Decision Date: 25 October 1933
• Docket Number: No. 6094.,6094.
• Citation: 250 N.W. 534,64 N.D. 154
• Parties: REDAHL v. STEVENS.
• Court: North Dakota Supreme Court

64 N.D. 154

250 N.W. 534

REDAHL

v.STEVENS.

No. 6094.

Supreme Court of North Dakota.

March 18, 1933.

On Rehearing Oct. 25, 1933.

On Rehearing.

Syllabus by the Court.

1. Where the appeal is on the judgment roll without a settled statement of the case, it will be presumed that the instructions are appropriate to the issues presented by the evidence, and they will not be held erroneous, unless they are abstractly wrong.

2. An instruction that, in order to recover, the plaintiff must establish by a preponderance of the evidence that he had been prosecuted criminally by the defendant, that the prosecution had terminated in his favor, and that such prosecution was malicious and without probable cause and resulted in his damage, sufficiently states the elements constituting a cause of action for malicious prosecution.

3. In the absence of a request, an instruction in an action for malicious prosecution is not subject to challenge by the defendant because the term “malice” used therein is not defined.

4. An instruction in an action for malicious prosecution is not subject to challenge by defendant on the ground that probable cause is not properly defined where the jury in effect are told what facts will constitute probable cause so as to enable them to determine whether or not there was such cause.

5. Where, in an action for malicious prosecution, the defendant admits the prosecution and attempts to justify it on the ground that he had acted in good faith on advice of counsel, the burden is upon him to establish the justification.

On Rehearing.

6. When a motion for new trial is made in the trial court, such errors of law as are not specified in the motion, including errors in the instructions, are deemed waived, and will not be considered on appeal.

Appeal from District Court, Adams County; Frank T. Lembke, Judge.

Action by H. J. Redahl against Tom Stevens. From a judgment for plaintiff, and from an order denying a motion for a new trial, the defendant appeals.

Affirmed.

Paul W. Boehm and F. M. Jackson, both of Hettinger, for appellant.

L. C. Broderick, of Mandan, and Morrison & Skaug, of Mobridge, S. D., for respondent.

NUESSLE, Chief Justice.

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.

[1] 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.

[2] 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.

[3] 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, “The malice necessary to sustain the action for malicious prosecution need not be ill will towards the plaintiff. Legal malice will support the action, and any unjustifiable motive constitutes legal malice. * * * Judge Cooley says: ‘Legal malice is made out by showing that the proceeding was instituted from any improper or wrongful motive, and it is not essential that actual malevolence or corrupt design be shown.”’ Kolka v. Jones, 6 N. D. 461, 71 N. W. 558, 562, 66 Am. St. Rep. 615. See, also, Wuest et al. v. American Tobacco Company, 10 S. D. 394, 73 N. W. 903.

[4] 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:

“The question for you to decide, Members of the Jury, in these cases of malicious prosecution is whether or not the defendant, Tom Stevens, had probable and reasonable cause for bringing the criminal action against Eric and H. J. Redahl in the justice court, and if you find from the evidence in these cases that he did have probable and reasonable cause to believe that they had violated the law and that he brought said actions in good faith and caused their arrest and prosecution for such violation of law, then and in that case the plaintiffs cannot recover damages for malicious prosecution.

On the other hand if the evidence discloses that he did not have probable cause for bringing said action and that there was no justification for the bringing of said criminal prosecutions against them, and that the same was done maliciously and without probable cause, then and in that case the plaintiffs would be entitled to recover. * * *”

What is probable cause is a mixed question of law and fact. “If the facts are not in dispute the question is for the court. Upon disputed facts the jury must be left to pass,...