Rhoads v. First National Bank of Carrington

• Decision Date: 14 July 1917
• Court: North Dakota Supreme Court

163 N.W. 1046

37 N.D. 421

NATHAN A. RHOADS v. FIRST NATIONAL BANK OF CARRINGTON, NORTH DAKOTA, and G. S. Newberry

Supreme Court of North Dakota

July 14, 1917

Appeal from the District Court of Foster County, Honorable J. A Coffey, Judge.

Reversed.

Reversed and remanded.

Geo. H Stillman and T. F. McCue, for appellant.

Where plaintiff has shown a good and valid cause of action for malicious prosecution, his good faith or bad faith in instituting the action cannot be questioned. Pierce v Pierce, 16 Cal.App. 375, 117 P. 580; McNamara v. McAllister, 150 Iowa 243, 130 N.W. 26, Ann. Cas.1912D, 463; Flinn v. Frederickson, 89 Neb. 563, 131 N.W. 934; Pollitz v. Wabash R. Co. 150 A.D. 715, 135 N.Y.S. 789; Ball v. Tolman, 119 Cal. 358, 51 P. 646.

Evidence, the only purpose of which is to prejudice the minds of the jury, should be excluded. McKay v. State, 90 Neb. 63, 39 L.R.A. (N.S.) 714, 132 N.W. 741, Ann. Cas.1913B, 1034; Deitz v. Providence Washington Ins. Co. 33 W.Va. 526, 25 Am. St. Rep. 908, 11 S.E. 50.

There was no evidence to connect plaintiff with the removal of the property. Krol v. Plodick, 77 N.H. 557, 94 A. 261, Ann. Cas. 1916A, 1124.

Mere belief of defendant in plaintiff's guilt, however strong, sincere, or honest, will not constitute probable cause unless founded upon circumstances sufficient in reason to warrant it. Shaul v. Brown, 28 Iowa 37, 4 Am. Rep. 151; Donnelly v. Burkett, 75 Iowa 613, 34 N.W. 330; Spalding v. Lowe, 56 Mich. 366, 23 N.W. 46; Vansickle v. Brown, 68 Mo. 627; Eggett v. Allen, 119 Wis. 625, 96 N.W. 803.

The word "wilfully" in this statute, like every other criminal statute, means not merely a known voluntary removal, but a removal from the county of the property, with an evil, bad intent. Potter v. United States, 155 U.S. 438, 39 L.Ed. 214, 15 S.Ct. 144; Galvin v. Gualala Mill Co. 3 Cal. Unrep. 869, 33 P. 94, 30 Am. & Eng. Enc. Law, 2d ed. 530 and cases cited; Brooks v. Bradford, 4 Colo.App. 410, 36 P. 303; Merchant v. Pielke, 10 N.D. 48, 84 N.W. 574; Johnson v. Miller, 63 Iowa 529, 50 Am. Rep. 758, 17 N.W. 34.

"An agreement to give plaintiff's attorney part of the recovery is valid, and defendant cannot offer evidence of such fact in evidence; nor can he so use an attorney's lien, if one is filed. It is prejudicial error to permit it." Sussdorff v. Schmidt, 55 N.Y. 319; King v. New York C. & H. R. R. Co. 72 N.Y. 607; Greenleaf v. Minneapolis, St. P. & S. Ste. M. R. Co. 30 N.D. 112, L.R.A. , , 151 N.W. 879.

The general rule is that such contracts cannot be admitted in evidence. They are wholly immaterial to the issues, and tend not to prove any issue in the case, but rather to confuse and prejudice the jury. Burnes v. Scott, 117 U.S. 591, 29 L.Ed. 994, 6 S.Ct. 865; Allison v. Chicago & N.W. R. Co. 42 Iowa 280, 3 Am. Neg. Cas. 330; Sibley v. Alba, 95 Ala. 198, 10 So. 831; Small v. Chicago, R. I. & P. R. Co. 55 Iowa 582, 8 N.W. 437; Chamberlain v. Grimes, 42 Neb. 701, 60 N.W. 948; Aultman v. Waddle, 40 Kan. 195, 19 P. 730; Gage v. DuPuy, 127 Ill. 216, 19 N.E. 878; Brinley v. Whiting, 5 Pick. 348; Courtright v. Burns, 2 McCrary, 60, 13 F. 317; Noble v. White, 103 Iowa 352, 72 N.W. 556; Watson v. Watson, 53 Mich. 168, 51 Am. Rep. 111, 18 N.W. 605.

It is the duty of a committing magistrate after a full examination of the facts, if he believes the evidence fails to show that a public offense has been committed and that there is no probable cause to hold the defendant, to promptly discharge him, and to give or indorse his reason for such discharge on the complaint, as the statute requires. United States v. Lumsden, 1 Bond, 5, Fed. Cas. No. 15,641; People v. Evans, 72 Mich. 367, 40 N.W. 473.

A justice of the peace should enter judgment, or other findings, at the close of the trial. Comp. Laws 1913, § 9100; Harper v. Albee, 10 Iowa 389.

The mere fact that one about to start criminal proceedings against another goes to the state's attorney or other proper officer and makes a full, fair statement of all the facts within his knowledge, is not enough. He must go further and investigate as to all the facts and circumstances he could have ascertained by the exercise of reasonable diligence. Merchant v. Pielke, 10 N.D. 52, 84 N.W. 574; Schneider v. Shepherd, 192 Mich. 82, L.R.A.1916F, 399, 158 N.W. 182.

It was error for the court to omit to so instruct the jury. Miller v. Chicago, M. & St. P. R. Co. 41 F. 898; Tucker v. Cannon, 28 Neb. 196, 44 N.W. 440; Manning v. Finn, 23 Neb. 511, 32 N.W. 314; Boyd v. Mendenhall, 53 Minn. 274, 55 N.W. 45.

"Malice" consists of a "wish" or "desire" to vex, annoy, or injure another person, or an intent to do a wrongful act to such person. Comp. Laws, 1913, § 10,360.

The omission of any material fact by design or otherwise will render the advice of counsel nugatory as a defense, and where there is a want of probable cause, advice of counsel is no defense. Cooper v. Utterbach, 37 Md. 283; Block v. Meyers, 33 La.Ann. 776; Wuest v. American Tobacco Co. 10 S.D. 394, 73 N.W. 905.

In such relation the burden of proof was on defendants. Davis v. McMillian, 142 Mich. 391, 3 L.R.A. (N.S.) 928, 113 Am. St. Rep. 585, 105 N.W. 862, 7 Ann. Cas. 854; Whitehead v. Jessup, 2 Colo.App. 76, 29 P. 916; Dreyfus v. Aul, 29 Neb. 191, 45 N.W. 282; Manning v. Finn, 23 Neb. 511, 37 N.W. 314; Roy v. Goings, 112 Ill. 656; Scrivani v. Dondero, 128 Cal. 31, 60 P. 463.

Edward P. Kelly, for respondents.

"Where an attorney proffers himself as a witness, voluntarily gives testimony in a case in which he admits having a contingent fee, he should be required to answer on cross-examination as to the amount of such fee." New Omaha Thomson-Houston Electric Light Co. v. Johnson, 67 Neb. 393, 93 N.W. 778, 13 Am. Neg. Rep. 546.

"The admission of testimony which is incompetent as the case then stands, but which is afterwards made competent by the introduction of other evidence, is not ground for setting aside the verdict." Eastman v. Amoskeag Mfg. Co. 44 N.H. 143, 82 Am. Dec. 201.

"The record of a court in which plaintiff was tried, showing his arrest, hearing, and acquittal, is admissible." 8 Enc. Ev. 418.

"If such record contained any matters not pertinent to the issues, the proper method of procedure would have been to object to its reading before the jury, or to ask that the jury be instructed to disregard it." Granger v. Warrington, 8 Ill. 299; Cooney v. Chase, 81 Mich. 203, 45 N.W. 833.

"That a verdict of acquittal was reached only after deliberation by a petit jury, and that such body entertained doubts about the evidence, is evidence in favor of the existence of probable cause for prosecution." Grant v. Deuel, 3 Rob. (La.) 17, 38 Am. Dec. 228.

And where the jury disagree it is prima facie evidence of probable cause. Johnson v. Miller, 63 Iowa 529, 50 Am. Rep. 758, 17 N.W. 34; Sherwood v. Reed, 35 Conn. 450, 95 Am. Dec. 284.

Where a person gives to the prosecuting attorney a full and fair statement of all the facts within his knowledge, or of which he had reasonable grounds to believe existed, he is not required to make any fuller or greater investigation. Johnson v. Miller, 69 Iowa 562, 58 Am. Rep. 231; Van Meter v. Bass, 40 Colo. 78, 18 L.R.A. (N.S.) 49, 90 P. 637.

"Harmless error in admitting incompetent evidence is not ground for reversal." Anderson v. First Nat. Bank, 6 N.D. 497, 72 N.W. 916.

Or where there is no reasonable probability that the result would have been different. Haugen v. Chicago, M. & St. P. R. Co. 3 S.D. 394, 53 N.W. 769.

Or where the judgment is clearly right. John A. Tollman Co. v. Bowerman, 5 S.D. 197, 58 N.W. 568; Hudson v. Archer, 9 S.D. 240, 68 N.W. 541; 1 Hill's Dig. p. 158; Numerous cases cited in Webster v. Webster, 66 Am. Dec. 711, note.

"Upon the undisputed facts the court should have found, as a matter of law, that the defendants had probable cause for bringing the criminal action." Krause v. Bishop, 18 S.D. 298, 100 N.W. 434; Kolka v. Jones, 6 N.D. 461, 66 Am. St. Rep. 615, 71 N.W. 558; Smith v. Nunich, 65 Minn. 256, 68 N.W. 19; Frowman v. Smith, 12 Am. Dec. 266, note; 2 Greenl. Ev. 456.

"Whether the proof of certain facts constituted probable cause is a question of law, and it is error to submit such question to the jury." Traverse v. Smith, 1 Pa.St. 234, 44 Am. Dec. 125.

"It is well established that it is a good defense in an action for malicious prosecution that the defendant in such action, in good faith relied upon the advice of counsel in instituting criminal proceedings." Merchant v. Pielke, 10 N.D. 48, 84 N.W. 574; Krause v. Bishop, 18 S.D. 298, 100 N.W. 434; Van Meter v. Bass, supra.

GRACE, J. BRUCE, Ch. J., concurring, CHRISTIANSON, J., ROBINSON, J., (specially concurring).

OPINION

GRACE, J.

The action is one for damages for malicious prosecution. The complaint alleges the corporate character of the defendant under the National Bank Laws of the United States of America and alleges that G. S. Newberry is cashier. That on or about the 6th day of November, 1914, the defendants maliciously and falsely conspired together with the intent to injure the plaintiff in his good name and credit, and wilfully and maliciously instructed the then sheriff of Foster county, North Dakota, to take steps to detain the plaintiff and deprive him of his liberty until the defendants could make a complaint and formal charge against him. Pursuant to said instructions the said sheriff of Foster county, North Dakota, through the sheriff of Plymouth county, Iowa without warrant and authority in law, wantonly and maliciously and at the instigation of the defendants, apprehended the plaintiff and confined him in the county jail of said Plymouth county, Iowa upon suspicion, and that plaintiff was so held and confined in the said county...