The Atchison v. Allen
| Decision Date | 11 February 1905 |
| Docket Number | 13,925 |
| Court | Kansas Supreme Court |
| Parties | THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY v. I. A. ALLEN |
Decided January, 1905.
Error from Marion district court; OSCAR L. MOORE, judge.
Judgment reversed.
SYLLABUS BY THE COURT.
MALICIOUS PROSECUTION--Action for Damages--Erroneous Instruction. In an action for malicious prosecution it is error to instruct the jury to decide for themselves, under all the evidence, what belief a person of ordinary caution and prudence would have entertained, from all the facts known to the defendant when he made the complaint, upon a matter which would necessarily be determinative of the question whether there was probable cause for the institution of the criminal proceeding for which the plaintiff asks damages.
A. A. Hurd, and Alfred A. Scott, for plaintiff in error.
W. H. Carpenter, for defendant in error.
OPINION
I. A. Allen was arrested upon the complaint of J. N. Harmon upon a charge of burglary. A preliminary examination resulted in his discharge. He thereupon sued the Atchison, Topeka & Santa Fe Railway Company for malicious prosecution, alleging that Harmon had been its agent and had acted in its behalf in the matter. A trial resulted in a Judgment for the plaintiff for $ 5000, from which the defendant prosecutes error.
It is first contended that a demurrer to the evidence should have been sustained upon the ground that it failed to show that Harmon was the agent of the defendant. The answer, however, in effect admitted that he was the company's agent for the purpose of investigating offenses against its property and of taking the necessary steps to have prosecutions begun in proper cases. It therefore appeared that he was an agent acting in the line of his authority, and even although he may have transgressed positive instructions his principal was bound for the consequences of his wrongful acts. (Wheeler & Wilson Mfg Co. v. Boyce, 36 Kan. 350, 13 P. 609, 59 Am. Rep. 571.)
The only other assignment of error requiring discussion relates to a feature of the instructions given. Objection is made to its consideration upon the ground that the record fails to show a sufficient exception. The case-made sets out the instructions given by the court, immediately followed by the recital: "To which instructions and each of them both plaintiff and defendant at the time asked and were allowed their exceptions." It is not stated that no other instructions were given. The defendant in error asserts that the words quoted do not show that defendant excepted to anything; that, if so, it was to the instructions and not to the giving of the instructions; that the time of the taking of the exception is uncertain; and that it is too general to be effective as the basis of challenge to any particular instruction. These objections are hypercritical. A statement that a party asked and was allowed an exception to a ruling must be interpreted as meaning that he excepted to it. To except to an instruction is to except to the giving of it. The words "at the time," as here used, can in reason be held to refer only to the time of the giving of the instructions. The exception was in terms made applicable not merely to the charge as a whole, but to each instruction. As the error specified relates to the contents of instructions given, and not to an omission or refusal to instruct, it is not essential that there should be an affirmative showing that no other instructions were given.
The contention of plaintiff in error under the assignment referred to is that the trial court in effect left it to the jury to decide what facts would authorize the conclusion that there was or was not probable cause for the arrest of Allen, instead of confining them to a determination of what the facts were under the evidence, and declaring as a matter of law that probable cause was or was not shown, according to what the facts might be found to be. There was testimony that the railway company's depot had been broken into and a quantity of bottled whisky stolen from it; that on the next morning Allen had a bottle of whisky which from its appearance might have been a part of the stolen property, although by no means fully identified as such; that Allen had told Harmon that he had obtained the liquor from one Ed. Kinney on the day before the burglary as part payment on an account; that he had told another person that he had obtained it after the burglary; that what seemed to be a part of the stolen goods was afterward found in a livery-stable where Allen kept his horses; that these matters, and perhaps also the fact that Kinney denied having furnished any liquor to Allen, were communicated to Harmon before he swore to the complaint. There were other items of evidence affecting the question of probable cause, but this statement is sufficiently full for the purposes of the present discussion. The court did not in so many words submit to the jury unreservedly the broad general question whether or not, under all the evidence, probable cause for the prosecution had been established; but in the enumeration of the questions of fact to be passed upon in arriving at a conclusion in that regard, it included (with others of the same character), first, whether an ordinarily cautious and prudent man, having the information that came to Harmon before he instituted the prosecution against Allen, would have believed that the liquor shown to have been in Allen's possession on the morning after the larceny was a part of the stolen property; and second, whether an ordinarily cautious and prudent man, under the circumstances shown, would have been satisfied from Allen's statement or explanation that he came by it rightfully. The inquiry presented is whether this constituted an infraction of the rule that in actions for malicious prosecution it is for the jury to determine only what facts are proved, and for the court to say whether or not they amount to probable cause.
The courts are substantially unanimous in recognizing theoretically at least, the existence of such a rule. ( Railroad Co. v. Smith, 60 Kan. 4, 55 P. 272; Drumm v. Cessnum, 58 id. 331, 49 P. 78; 19 A. & E. Encycl. of L., 2d ed.,...
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