Vander Linden v. Oster
| Decision Date | 16 March 1916 |
| Docket Number | 3825 |
| Citation | 37 S.D. 113,156 N.W. 911 |
| Parties | G. VANDER LINDEN, Plaintiff and respondent, v. ANTON OSTER, Defendant and appellant. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Davison County, SD
#3825Reversed
A. E. Hitchcock, H. A. Rodee
Attorneys for Appellant.
Spangler & Haney
Attorneys for Respondent.
Opinion filed March 16, 1916
Judgment for damages for malicious prosecution. Appeal from such judgment, and from an order denying a new trial.
The alleged malicious prosecution was based upon a writing which we will hereinafter term an "information" to distinguish same from the "complaint" in the present action. Defendant questions the sufficiency of such information as a basis for the present action. He contends that such information, did not state any offense under the laws of this state, and that, in order for it "to serve as a basis for the action of malicious prosecution, the original criminal prosecution must have been upon a sufficient affidavit, complaint, information, or indictment." The information charged that, at a certain time and place, the plaintiff in the present action "did abduct the said Anton Oster's daughter ... Katie Oster, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of South Dakota, ... and asks that the said G. Vander Linden may be arrested and dealt with according to law." To abduct the daughter from the father is a civil wrong just as would be the abduction of a son from a father, or the father from a child. Section 32, C. C. To abduct a female is no crime under the laws of this state, unless, among other prescribed conditions, the abduction is for some one or more of several purposes mentioned in sections 333, 334, and 335, Pen. C. The information in question comes as far from alleging a criminal offense as would an information which charged one with breaking into the dwelling house of another without charging that such breaking was with some unlawful intent. A person reading or hearing of this charge might imagine such abduction to be for purposes of prostitution, thus making it criminal under section 334, supra; or with intent to compel the victim by force, menace, or duress, to marry some party, thus making it criminal under section 333, supra; or might even draw upon his imagination to the extent of seeing a case of abduction of a girl under 15 years of age, abducted from her parent or guardian for purpose of marriage, concubinage, or prostitution, thus making it criminal under section 335, supra; just as one might, upon hearing that one was accused of breaking into another's house, imagine that it was done with intent to rape a female residing therein, thus making burglary out of such breaking. Suppose this information had alleged that plaintiff did abduct "John Oster contrary to the form," etc. It would have come just as near alleging a criminal offense as it did worded as it was; it might not have opened up quite as broad a field for the play of the imagination.
Plaintiff alleged that defendant "made complaint charging the plaintiff with the crime of abduction, and charging plaintiff with abducting one Katie Oster, the daughter of defendant." The information was offered and, over defendant's objection, received in evidence to prove the above allegation. The ground of defendant's objection to the receipt of the information in evidences was that it did not state any offense under the laws of this state. The overwhelming weight of authority supports the proposition that one who maliciously and without probable cause files what purports to be a criminal information, but which fails to state facts constituting a criminal offense, cannot urge the defect in such information as a defense to an action for malicious prosecution based thereon. Minneapolis T. M. Co. v. Regier, 51 Neb. 402, 70 N.W. 934; Dennis v. Ryan, 65 N.Y. 385,. 22 Am. Rep. 635; Strehlow v. Pettit, 96 Wis. 22, 71 N.W. 102; Lueck v. Heisler, 87 Wis. 644, 58 N.W. 1101; Potter v. Gjertsen, 37 Minn. 386, 34 N.W. 746: The objection being insufficient, there was no error in receiving the information in evidence, even though it was insufficient to prove that defendant "made complaint charging the plaintiff with the crime of abduction."
Evidence was received showing that defendant signed the information knowing that a warrant would issue if he signed it, and expecting that plaintiff would be arrested thereon and showing that he was so arrested. There was no evidence tending to prove that defendant knew that the facts charged in said information did not constitute a criminal offense. There was evidence from which the jury may well have found that defendant had probable cause for believing that plaintiff had abducted his daughter; but there was no evidence tending to show that it had ever entered the defendant's mind that plaintiff had abducted his daughter for any one of the immoral purposes above referred to, or tending to show that there existed any probable cause for defendant to believe plaintiff guilty of all the necessary elements constituting a criminal offense under any one of said sections. There was no direct evidence of actual malice on the part of defendant; at the best there was but an opportunity for the jury to infer malice from want of probable cause if such want of probable cause was found by it to exist.
The evidence having been properly received, as against any objections interposed, we must consider this case upon such evidence and need not consider the sufficiency or insufficiency of the pleadings. The trial court not only admitted the information in evidence as proof of the said allegation contained in the complaint, but it read to the jury sections 334 and 335, supra, for the expressed purpose of explaining to them "what is commonly understood by the crime of abduction," and it then instructed the jury that such information substantially charged such. crime. Such instruction was clearly erroneous. The trial court assumed, for all purposes of the trial, that the allegation--that defendant "made complaint charging the plaintiff with the crime of abduction"--had been proven. Acting from such premise, the court took from the jury the question, of probable cause and held, as a matter of law, that defendant had no probable cause to prefer such criminal charge. This ruling would have been correct if the premise had been correct.
But there can he no malicious prosecution unless there be both malice and want of probable cause. What question of probable cause was presented to the court and jury under the evidence received? Was it the question of whether defendant had probable cause to believe plaintiff guilty of criminal abduction--a charge he never made and one which he clearly did not have in mind; or was it the question of whether defendant had probable cause to believe plaintiff guilty of the act actually charged? We believe that, under both reason and authority, it was the latter. While the evidence upon such latter question was undisputed, and while, as a general rule, where the evidence is thus undisputed, the question of probable cause is one of law for the court (Neys v. Taylor, 12 S.D. 488, 81 N.W. 901), yet we are of the opinion that, under the undisputed facts of this case, two equally reasonable men might arrive at different conclusions upon the question of whether defendant had probable cause to make the charge he did make, and this owing to the different inferences that might properly be drawn from such facts. That being true, the ordinary rule was not applicable, and the question of probable cause was still a question of fact that should have been left to the jury. Heyne v. Blair, 62 N.Y. 19. It is, urged that it rs inconsistent and illogical to hold that the fact that the information did not charge a criminal offense cannot be urged in defense of the action for malicious prosecution, and at the same time hold that the question of probable cause must be restricted to the accusations actually made by defendant. Were it either inconsistent or illogical to so hold it certainly would not be so monstrous, so fraught with injustice, as to hold that, if A., acting without malice and having probable cause to believe B. has abducted C., and fully believing that the mere abducting of C. was a criminal offense whether C. be male or female and regardless of the purpose of the abduction, makes a charge that B. has abducted C. and procures his arrest, he can be held in damages for malicious prosecution; and this because he had no probable cause to believe B. had made such abduction for some forbidden purpose not dreamed of by A. and not charged against B.
This case must be distinguished from one where it is proven or conceded that a party has maliciously and without probable cause charged facts not constituting a criminal offense. Such was the case of Dennis v. Ryan, supra. This case must be distinguished from one where the party making a charge not constituting a crime knew that it did not constitute a crime and yet made it for the purpose of causing another's arrest. This case must be distinguished from a case where one charges the crime according to its statutory name and then sets forth the alleged facts constituting such crime, and such facts are insufficient to constitute any criminal offense. This case must be distinguished from a case where the allegations of the information substantially charge some criminal offense. Let us suppose that what was charged by defendant did, actually constitute a crime, that he had probable cause for believing the truth of such charge or, at least, was not moved by malice in making same. He could not be holden no matter how mistaken he was. How then can he be liable if he acted without malice and with probable cause simply because if he had included in his, charge some other allegation, the offense charged would have been more heinous,...
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