Tryon v. Pingree

• Decision Date: 27 April 1897
• Citation: 70 N.W. 905,112 Mich. 338
• Court: Michigan Supreme Court
• Parties: TRYON v. PINGREE.

70 N.W. 905

112 Mich. 338

TRYON v. PINGREE.

Supreme Court of Michigan

April 27, 1897

Error to circuit court, Wayne county; Robert E. Frazer, Judge.

Action by James E. Tryon against Hazen S. Pingree. From a judgment for defendant, plaintiff appeals. Reversed.

George Gartner (Fred C. Harvey and Fred A. Baker, of counsel), for appellant.

Thomas T. Leete, Jr., and Eli R. Sutton (C. A Kent, of counsel), for appellee.

MOORE J.

This is an action for malicious prosecution and false imprisonment. A verdict and a judgment was given for defendant, and plaintiff brings the case into this court. In August, 1894, the plaintiff was secretary of the board of fire commissioners of the city of Detroit, and had the custody of its books and papers. The defendant at this time was mayor of the city of Detroit. The act creating the board of fire commissioners provided: "All books and accounts kept by said fire board shall at all times be subject to the inspection of the mayor and controller." Mr. Greusel was employed by the Detroit Tribune, a leading paper of Detroit, to look up and prepare matter for publication pertaining to the fire department. An article was published which the commissioners claimed untruly reflected upon the management of the department, and they directed the secretary not to permit Mr Greusel to examine any more of the books belonging to the department. Upon the refusal of Mr. Tryon to permit an examination of the books by Mr. Greusel, the managing editor of the Tribune wrote a letter to the mayor, stating the refusal by Mr. Tryon to allow Mr. Greusel to examine the books, and saying they had information which led them to believe serious irregularities existed in the management of the fire department, and asked the mayor to request Controller Moore to make an examination of the books in the presence of Mr. Greusel. It was also claimed by the mayor that he had received information of irregularities from other sources. The mayor and the controller visited the office of the fire department, and found the assistant secretary in charge. He was informed by the mayor that he had come, as mayor, to examine the books. A few books and papers were examined, but those in the safe were not produced for his inspection. The next day the mayor accompanied by Mr. Greusel, visited the office, and found the plaintiff in charge.

The mayor requested that Mr. Greusel be allowed to examine the books as his representative. This was refused. He then demanded to see the books himself, and was told that he could not do so until Mr. Goodfellow, president of the commission, was notified. Later in the day, Mr. Pingree, accompanied by his secretary, two policemen, and Mr. Greusel, again visited the office. Mr. Tryon was not there. The books were not produced for examination, and, after a delay of an hour, the mayor and his secretary left the office. Mr. Greusel remained, with written authority from the mayor to examine the books in his behalf. After leaving the office, Mr. Pingree met Mr. Tryon and Mr. Goodfellow on their way to the fire department. Some conversation ensued. The mayor stated he had left Mr. Greusel to examine the books. He was informed by Mr. Goodfellow that the commission was in charge of that office, and that he would go down and throw Greusel out; and the defendant stated he would go along and see him thrown out. A whispered conversation occurred between Mr. Tryon and Mr. Goodfellow, and Mr. Tryon went on ahead of the others. When Mr. Pingree and Mr. Goodfellow got to the offices, they were closed, and the doors locked. A controversy arose. A number of firemen were called by Mr. Goodfellow to eject Mr. Greusel. Mr. Pingree attempted to protect him. Then Mr. Elliot and others seized and held Mr. Pingree, and Greusel was thrown downstairs. Mr. Pingree remained for a time, and demanded to see the books. His demand was refused. About 6 o'clock of the same day, Mr. Pingree, with his secretary, Mr. McLeod, and several policemen, again visited the offices of the fire department, and demanded to see the books. His demand was refused, upon the ground that it was after office hours. On the evening of the same day, Mr. Pingree summoned to his office Mr. Flowers, a lawyer, Police Justice Sellers, John G. Hawley, a lawyer, and others. It is claimed by the defendant that he fully and fairly stated all of the facts of which he was advised to Mr. Hawley, his lawyer, and that he was advised by Mr. Hawley that the plaintiff and Mr. Goodfellow, Mr. Elliot, and other persons were guilty of a conspiracy. Mr. Hawley dictated a complaint charging conspiracy in the presence of both of the police justices. The complaint was sworn to by Mr. Pingree. Police Justice Sellers issued a warrant. It is claimed that this ended his connection with the criminal case. On the part of the plaintiff it is claimed that, at the examination, he was represented by private counsel, and that he instigated the arrest and the subsequent prosecution of the case. Mr. Tryon was arrested, gave bail, and at the examination, after two witnesses were sworn, upon advice of the prosecuting attorney, was discharged. He then brought this suit, with the result already stated.

A good many questions are raised by the record and briefs. It is admitted that the mayor had the right to examine the books in his official capacity; but it is claimed by the plaintiff that, in all he did, he was not acting as mayor, but was seeking to help Mr. Greusel personally, and was actuated by improper motives. It is also claimed by the plaintiff that the mayor could not delegate his right to examine the books to Mr. Greusel. It is urged that Mr. Pingree did not fully and fairly state all the facts he knew to Mr. Hawley. It is contended that to obstruct an executive officer is not a crime, either at common law or by statute, and that the complaint which was made did not charge an offense. A large number of assignments of error were taken. These have all had careful consideration; but it will not be necessary, in our view of the case, to discuss all of them.

The charge of the trial judge, so far as it is necessary to quote it, was as follows: "I give you defendant's sixth request, as modified: 'That, the warrant having been issued by a court having jurisdiction of the preliminary examination of all offenders or offenses committed in Detroit, the judgment of the court that there is such a crime as the one charged, and there was reason to think the persons charged had committed it, protects all persons concerned in the issue or execution of the warrant as far as false imprisonment is concerned.' I charge you that it is the law of this case that there can be no recovery as against the defendant on the count in this declaration for false imprisonment. I understand it to be the law as laid down in Wheaton v. Beecher, 49 Mich. 348, 13 N.W. 769, in that, when the offense stated in the warrant is such an offense that the justice has jurisdiction of the subject-matter, the warrant will protect the officer serving it, and also all parties making the complaint. I charge you that in this case the justice did have jurisdiction of the subject-matter for which this warrant was issued, and that, having jurisdiction of the subject-matter, there can be no recovery in this case upon any ground of false imprisonment. The question that I shall leave to you is simply one question for you to determine, or two questions, rather, and that is upon the count in this declaration charging the defendant with malicious prosecution. Indeed, in order to sustain an action for malicious prosecution, it is necessary that two things should be proven: First, that there should be malice,-and in a case of malicious prosecution I understand malice to be an intentional wrongdoing. This malice may be inferred from want of probable cause; that is, if there was no probable cause on the issuing of the warrant, then a jury may infer from that a malice such as is required by law. But, gentlemen of the jury, want of probable cause is to be inferred or to be proven or established before you in this case on these premises: I charge you that if the defendant in this case, Mr. Pingree, fully, fairly, and honestly stated the facts as they appeared to him, and as he knew them, to John G. Hawley, or to the police magistrate, and that, upon such a statement, this warrant was issued, then there can be no recovery in this case for malicious prosecution, even if the advice of John G. Hawley was wrong, or the warrant was issued without authority of law, or the warrant did not state any offense against the law. The principle which governs in this case is laid down by the supreme court of the state, and is as follows: 'Every man of common information is presumed to know that it is not safe in matters of importance to trust to the legal opinion of any but recognized lawyers. When a person resorts to the best means in his power for information, it...