Smith v. Fed. Rubber Co.

• Decision Date: 13 January 1920
• Citation: 170 Wis. 497,175 N.W. 808
• Parties: SMITH v. FEDERAL RUBBER CO.
• Court: Wisconsin Supreme Court

170 Wis. 497

175 N.W. 808

SMITH

v.FEDERAL RUBBER CO.

Supreme Court of Wisconsin.

Jan. 13, 1920.

Appeal from Circuit Court, Milwaukee County; E. T. Fairchild, Judge.

Action by Sydney M. Smith against the Federal Rubber Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded, with directions.

This is an action for malicious prosecution. The complaint alleges that the plaintiff, a physician and surgeon, was maliciously arrested and prosecuted without probable cause, charged with having knowingly received tires stolen from the defendant company. Plaintiff claims damages in the sum of $10,000. The answer of the defendant sets forth probable cause and alleges that defendant acted throughout on the advice of counsel, namely, the district attorney of Milwaukee county.

It appears that in February, 1918, defendant company was conducting an investigation into losses of tires, and Robert M. Lauer, assistant comptroller of the company, secured confessions from two employés, Brownell and Henry by name, in which they confessed to stealing tires and to selling them to different persons in the city of Milwaukee, among them Dr. Smith. These confessions were turned over to the district attorney. The district attorney and his assistant advised Lauer to sign the complaint against Dr. Smith, which he did.

The case was tried before the court and a jury. By a special verdict the jury found that when the defendant commenced criminal proceeding against the plaintiff, on February 15, 1918, the defendant did not have probable cause to believe plaintiff guilty of the offense charged in the complaint; that defendant acted maliciously in commencing the criminal proceedings; that Lauer did not make a full, fair, and honest statement of all material facts known to him bearing upon the question of the plaintiff's guilt of the offense to the district attorney or his assistant, for the purpose of procuring legal advice thereon before commencement of the criminal proceedings against Dr. Smith; that Lauer did not act in good faith in commencing the criminal proceeding; that plaintiff is entitled to $2,000 compensatory damages and $500 punitory damages.

Judgment was entered on the verdict, from which judgment this appeal is taken.Miller, Mack & Fairchild, of Milwaukee, for appellant.

Churchill, Bennett & Churchill, of Milwaukee, for respondent.

SIEBECKER, J. (after stating the facts as above).

It appears that Henry, an employé of the defendant company, on February 7, 1918, confessed to stealing tires to Mr. Lauer. This confession was taken down in shorthand by his stenographer. The chief of police of the city of Cudahy was present, at Mr. Lauer's request. On the following day, Brownell also confessed to being implicated in this theft. At this time Henry gave additional detail of how the tires were taken, disposed of, and to whom they were sold. In the statement of Henry he declared that some of the tires so stolen were sold to Dr. Smith, the plaintiff in this action. Brownell at this conference confirmed Henry's statement that a pair of tires were sold to Dr. Smith. On February 9th the chief of police of Cudahy and Mr. Lauer presented the confessions and other matters to Mr. Zabel, district attorney for Milwaukee county, and, upon inquiry by Zabel, the chief of police of Cudahy informed him how the confessions were secured. Mr. Zabel thereupon had complaint made, and secured the arrest of Henry and Brownell, who were being held in custody by the chief of police. On February 11th, the district attorney and two assistants went over the confession in the presence of Henry, Brownell, Lauer, and others at the district attorney's office. Mr. Zabel questioned Henry and Brownell concerning the confessions, and went into the details of the transactions of obtaining the tires, the quantity taken, to whom...