Tarantino v. Griebel

• Decision Date: 05 January 1960
• Citation: 86 A.L.R.2d 1084,100 N.W.2d 350,9 Wis.2d 37
• Parties: , 86 A.L.R.2d 1084 Louis J. TARANTINO, Respondent, v. Mildred GRIEBEL, Appellant.
• Court: Wisconsin Supreme Court

Page 350

100 N.W.2d 350

9 Wis.2d 37, 86 A.L.R.2d 1084

Louis J. TARANTINO, Respondent, v. Mildred GRIEBEL, Appellant.

Supreme Court of Wisconsin.

Jan. 5, 1960.

Houghton, Bullinger, Nehs & Houghton, Ray T. McCann, William R. Gold, Kenneth F. Hostak, Milwaukee, for appellant.

Curley & Sheedy, Milwaukee, William P. McGovern, Michael J. Barron, Milwaukee, of counsel, for respondent.

HALLOWS, Justice.

The issue raised by this appeal is whether a conviction which is superseded by an acquittal on appeal after a trial de novo is conclusive of the existence of probable cause in a subsequent action for malicious prosecution.

To be successful in an action for malicious prosecution the plaintiff must allege and has the burden of proving the defendant had no probable cause for instituting the proceedings against him. Lack of probable cause is only one of the essential elements to such cause of action. Elmer v. Chicago & N. W. R. Co., 1950, 257 Wis. 228, 43 N.W.2d 244; Gladfelter v. Doemel, 1958, 2 Wis.2d 635, 87 N.W.2d 490. The essential facts on this appeal are without dispute and therefore the question of probable cause is a question of law to be decided by the court if the conviction of the respondent in the district court is conclusive proof of probable cause on the part of the appellant.

The respondent argues that a conviction reversed on appeal, whether heard on the record or as a trial de novo, should at the most be prima facie evidence of probable cause and in this case the conviction should be given no effect because of the nature of the trial in the district court.

The question of the effect of a conviction on the issue of probable cause was first decided by this court in Topolewski v. Plankinton Packing Co., 1910, 143 Wis. 52, 126 N.W. 554. There it was held that a judgment of conviction not obtained by fraud of the complainant, though reversed for error, was conclusive proof of probable cause for the commencement of the criminal prosecution and that effect of such judgment could not be impaired by retrying in the malicious prosecution action the issues of fact raised or proper to have been raised or litigated in the former trial. In that case the conviction in the district court of Milwaukee county was reversed on a question of law. The appeal did not involve a trial de novo. However, this court in the Topolewski case, supra, used broad language and did not confine its opinion to the nature of the trial in the lower court or to the nature of the appeal or to the reason for the reversal. It based its decision on the ground of sound public policy and fairness to litigants, stating (143 Wis. at page 62, 126 N.W. at page 558): 'The idea is that the administration of the criminal law should not be embarrassed by such dangers to informers as will efficiently deter them from making known to professional legal advisers such information as they may have respecting probability of crime having been committed and the guilty parties; that so long as they act honestly they should have complete immunity from consequences.'

In adopting this view the court relied upon Crescent City Live-Stock Landing & Slaughter-House Co. v. Butchers' Union, etc., Co., 1887, 120 U.S. 141 at page 159, 7 S.Ct. 472, at page 481, 30 L.Ed. 614, wherein the Supreme Court of the United States stated: 'The rule is founded on deeper grounds of public policy, in vindication of the dignity and authority of judicial tribunals constituted for the purpose of administering justice according to law, and in order that their judgments and decrees may be invested with that force and sanctity which shall be a shield and protection to all parties and persons in privity with them.'

The Topolewski case, supra, was followed by this court in Bayliss v. Clayton, 1932, 207 Wis. 313, 241 N.W. 329. In that case the plaintiff in the malicious prosecution action had pleaded not guilty in the district court of Milwaukee county, but was convicted. It does not appear in the report that he had a jury trial or that he was represented by counsel. The conviction was appealed to the municipal court of Milwaukee county, transferred on a change of venue to the circuit court, and heard, as here, de novo before a jury. The plaintiff was acquitted. In the subsequent malicious prosecution case the jury found for the plaintiff but the verdict was set aside by the trial court, and a new trial was granted in the interest of justice. On appeal this court applied the doctrine of the Topolewski case, supra, and again stated that a judgment in a criminal prosecution obtained without collateral fraud, though subsequently reversed, is conclusive evidence of probable cause for the prosecution. More recently this rule was applied in Oosterwyk v. Bucholtz, 1947, 250 Wis. 521, 27 N.W.2d 361, when this court affirmed the trial court in granting summary judgment dismissing a complaint treated as one for malicious prosecution because the conviction, although subsequently set aside, established probable cause as a matter of law.

The rule in Wisconsin has been adopted by the majority of jurisdictions considering this question. 34 Am.Jur., Malicious Prosecution, p. 737, § 55. The rule stated in 3 Restatement, Torts, p. 421, § 667(1) follows: 'The conviction of the accused by a magistrate or trial court although reversed by an appellate tribunal, conclusively establishes the existence of probable cause, unless the conviction was obtained by fraud, perjury or other corrupt means.'

The respondent argues there is a distinction between the Topolewski case, supra, and the facts in the instant case, especially where the original conviction was had in a police court, and cites Hanser...