Shafer v. Hertzig

• Decision Date: 13 May 1904
• Docket Number: 13,856 - (81)
• Citation: 99 N.W. 796,92 Minn. 171
• Parties: ISIDOR SHAFER v. PETER HERTZIG
• Court: Minnesota Supreme Court

99 N.W. 796

92 Minn. 171

ISIDOR SHAFER v. PETER HERTZIG

Nos. 13,856 - (81)

Supreme Court of Minnesota

May 13, 1904

Appeal by defendant from an order of the district court for Goodhue county, Williston, J., denying a motion for judgment notwithstanding the verdict or for a new trial, after a trial and verdict in favor of plaintiff for $145. Reversed and new trial granted.

SYLLABUS

Malicious Prosecution.

In an action for malicious prosecution the question whether a certain state of facts shows the existence of probable cause is for the court, yet the existence of such facts and all reasonable inferences favorable to the prosecutor are for the jury.

Probable Cause.

In such action it is enough to excuse the prosecutor if he exercises such a degree of impartiality and freedom from prejudice as can be fairly expected from an ordinarily prudent man acting without malice.

Slander of Female.

In a criminal prosecution instituted for the slander of a female under section 6507, G.S. 1894, where information thereof was conveyed to the husband by third parties, and he took witnesses who claimed to have heard the slanders to a magistrate, and requested the latter to examine them, and "satisfy himself," which was done, whereupon the husband made complaint against the plaintiff without other knowledge thereof, upon which the latter was tried and discharged, held:

1. That the acquittal of the accused did not furnish any evidence of the want of probable cause.

2. Nor did the fact that the prosecutor did not himself hear the alleged slander spoken establish the want of good faith or reasonable grounds for a criminal proceeding under the statute.

3. That, notwithstanding the delay of the prosecutor in instituting the criminal suit, his good faith or absence of malice was for the jury, and it was error for the court to decide that issue as a matter of law.

Fraser & Fraser and Albert Johnson, for appellant.

In an action for malicious prosecution the burden of proof is on plaintiff to prove his complaint. He is required to prove the institution of the proceedings, a lack of probable cause and malice and malicious motive on the part of the defendant. A prima facie case is not made by proving the signing of the criminal complaint and the acquittal of plaintiff or failure of the proceedings, nor by proof that defendant was not present and did not hear the slanderous words spoken. The presumption of law is that every prosecution for a crime is founded on probable cause and is instituted only for the purpose of justice. 19 Am. & Eng. Enc. (2d Ed.) 650, 660 note 4.

Under the general denial the questions of probable cause, good faith and absence of malice, advice of counsel, termination of prosecution, and whether instigated by defendant, were all raised, and the burden of proving these is on plaintiff. 13 Enc. Pl. & Pr. 458, 459, 460. The plaintiff totally failed to prove a lack of probable cause and the court should have directed a verdict for defendant. 13 Enc. Pl. & Pr. 466, 467, and note 1; Tabert v. Cooley (46 Minn. 366) 13 L.R.A. 464, note; 19 Am. & Eng. Enc. (2d Ed.) 700, note 7; Harpham v. Whitney, 77 Ill. 32, 42; Cloon v. Gerry, 13 Gray (Mass.) 201; Besson v. Southard, 10 N.Y. 236; Ferguson v. Arnow, 142 N.Y. 580; Thaule v. Krekeler, 81 N.Y. 428; Bacon v. Towne, 4 Cush. 217, 218.

The court could not assume malice, as a matter of law, even if he was justified in holding that there was want of probable cause. Hatjie v. Hare, 68 Vt. 247. Punitive damages should never be allowed until the jury first finds malice, and this is a question for the jury, though in this case there was no evidence of malice such as would warrant punitive damages. 12 Am. & Eng. Enc. (2d Ed.) 23, 51; Seeman v. Feeney, 19 Minn. 54 (79); Baumier v. Antiau, 65 Mich. 31; Stewart v. Sonneborn, 98 U.S. 192, 193.

F. M. Wilson and J. F. Merrill, for respondent.

OPINION

LOVELY, J.

Action for malicious prosecution. There was a verdict for the plaintiff. A motion by defendant for judgment or new trial in the alternative, was denied. From this order defendant appeals.

The complaint sets forth a cause of action for the prosecution of plaintiff before a justice of the peace of the village of Pine Island for having maliciously used defamatory words in the presence of third parties concerning defendant's wife, which exposed her to contempt and ridicule, in violation of section 6507, G.S. 1894. The plaintiff was arrested upon the complaint of defendant here. There was a trial before the magistrate. The plaintiff was discharged, and brought this suit for the damages he claims to have sustained.

When the cause was submitted, the trial court instructed the jury that the evidence was not sufficient to show that defendant had probable cause for instituting the prosecution before the justice, and directed a verdict for the plaintiff for such damages as it should be found he was entitled to recover. While the inquiry on such an issue makes the sufficiency of the facts to justify a criminal accusation in any case a question for the court, yet the right to have such facts and all fair and reasonable inferences deducible therefrom affecting the good faith of the prosecutor submitted cannot be questioned. Cole v. Curtis, 16 Minn. 161 (182); Burton v. St. Paul, M. & M. Ry. Co., 33 Minn. 189, 22 N.W. 300.

The alleged slander of defendant's wife consisted of oral statements claimed to have been made by plaintiff in a narration of her conduct at a wedding party (in February, 1901, at Zumbrota), when her husband (defendant here) was not present, wherein she was accused of such indelicate behavior in the presence of the male guests as indicated a disregard of chastity and common decency and would naturally excite the contempt and reprehension of respectable people. The sufficiency of the complaint to bring the case within the statute which inhibits the slander of females is not and could not be disputed. While such statements were not directly repeated to defendant, or in his presence, it was claimed they were to others two days after the wedding party. The persons to whom they were said to have been made gave information thereof to defendant, upon which he based the criminal proceeding, though it was not commenced until a year and two months afterwards, and it does not appear when defendant first received his information from the recipients of the obnoxious utterances. Defendant, when he went before the magistrate to enter his complaint, secured the attendance of two of his informants, who accompanied him, and were examined under oath by the justice, as authorized under section 5095, G.S. 1894.

The justice upon the trial of this cause testified that these witnesses, when produced, were sworn and...