De Vries v. Dye

• Decision Date: 13 October 1936
• Parties: DE VRIES v. DYE.
• Court: Wisconsin Supreme Court

222 Wis. 501

269 N.W. 270

DE VRIES

v.DYE.

Supreme Court of Wisconsin.

Oct. 13, 1936.

Appeal from a judgment of the Circuit Court for Dane County; August C. Hoppman, Judge.

Affirmed.

In this action, commenced on May 11, 1934, by the plaintiff, Mary J. De Vries, as guardian of Arnold De Vries, an incompetent, she seeks to recover from the defendant, Myra Dye, damages alleged to have been sustained by her ward as a result of an action asserted to have been maliciously prosecuted. Trial was had to the court and a jury. Upon the closing of the plaintiff's testimony, the defendant moved the court for a compulsory nonsuit. That motion was granted. The court thereafter made and filed its findings of fact and conclusions of law. The court found upon the undisputed evidence that the defendant at the time she made complaint against Arnold De Vries, had probable cause to believe that he had violated the provisions of section 23.31 of the ordinances of the city of Madison. The court concluded: (1) That the complaint of the defendant was the commencement of a civil action of such a nature that no action for malicious prosecution could be based thereon; and (2) that the plaintiff had failed to establish want of probable cause in making the complaint. From a judgment nonsuiting the plaintiff on the merits, entered October 28, 1935, the plaintiff appealed. The facts will be stated in the opinion.

George F. Lange, of Madison, for appellant.

La Follette, Rogers & Roberts, of Madison, for respondent.

NELSON, Justice.

[1] This is an action for malicious prosecution. The plaintiff contends that the court erred (1) in permitting the defendant's, counsel to re-examine the defendant, called as an adverse witness, immediately following the conclusion of her examination by plaintiff's counsel, (2) in granting a nonsuit on the merits, and (3) in denying the plaintiff a jury trial.

In support of the first assignment of error, the plaintiff cites the case of O'Day v. Meyers, 147 Wis. 549, 133 N.W. 605. The law laid down in that case was modified in Guse v. Power & M. M. Co., 151 Wis. 400, 139 N.W. 195, 197. In that case it was said: “Under such circumstances the defendant has a right to re-examine such witness, immediately after the examination by plaintiff's counsel, as to all matters tending to explain or qualify the testimony already given, but not as to new matters not brought out by plaintiff's counsel, and constituting part of the defendant's defense. *** So far as O'Day v. Meyers, supra [147 Wis. 549, 133 N.W. 605], may be understood to the contrary, it must be deemed modified by this decision.”

That rule was recently approved in Leslie v. Knudson, 205 Wis. 517, 521, 238 N. W. 397, 399. We have read the examination of the defendant, called adversely for cross-examination, and the subsequent re-examination conducted immediately thereafter by her counsel. Numerous objections were made by plaintiff's counsel to the testimony sought to be adduced on the ground that it was hearsay or was too remote to have any relevancy to the issues litigated. Once or twice plaintiff's counsel objected to a question on the ground that it sought to adduce new, defensive matter and was not proper cross-examination. The record reveals that the court was familiar with the rule approved in the Guse and Leslie Cases. In our opinion the court did not permit the defendant's counsel to go beyond the reasonable limits of the rule in re-examining his client. It is our opinion that the court did not err in the respect asserted.

[2] The plaintiff next contends that the court erred (1) in finding that the defendant had probable cause for making the complaint, (2) in concluding that the proceeding upon such complaint was a civil action of such nature that no action for malicious prosecution could be based thereon, and (3) in concluding that the plaintiff failed to establish a want of probable cause in making the complaint. In our view it is unnecessary presently to determine whether an action for malicious prosecution may be grounded upon a complaint made under a city ordinance. Such actions are civil actions. The City of Oshkosh v. Schwartz, 55 Wis. 483, 487, 13 N.W. 552;Milwaukee v. Johnson, 192 Wis. 585, 589, 213 N.W. 335;City of Neenah v. Krueger, 206 Wis. 473, 240 N.W. 402. Under certain circumstances, an action for malicious prosecution may be grounded upon a civil action. Luby v. Bennett, 111 Wis. 613, 87 N.W. 804, 56 L.R.A. 261, 87 Am.St.Rep. 897.

[3] If the court was right in finding from the undisputed facts that the defendant had probable cause for making the complaint and that the plaintiff failed to establish that the defendant acted without probable cause in making the complaint, then the nonsuit was properly granted, since, in a malicious prosecution action, want of probable cause for making complaint or instituting an action is clearly one of the essentials. As was said by Mr. Justice Dodge, speaking for the court in Small v. McGovern, 117 Wis. 608, 614, 94 N.W. 651, 653: “It is elementary law that the action for malicious prosecution can be maintained only when the defendant was actuated by malice, and acted without probable cause to believe the accused guilty.” (Citing numerous prior Wisconsin cases.)

In Eggett v. Allen, 119 Wis. 625, 96 N. W. 803, and Schwartz v. Schwartz, 206 Wis. 420, 240 N.W. 177, 179, “probable cause” was thus defined: “Probable cause has been defined to be such a state of facts in the mind of the prosecutor as would lead a man of ordinary caution and prudence to believe or entertain an honest and strong suspicion that the person arrested is guilty.”

[4] It is generally held that whether a defendant acted upon “probable cause” or “without probable cause” is a mixed question of law and fact, and that if the facts are in dispute the determination of the facts under proper instruction of the court must be determined by the jury, but if the facts are undisputed the court should determine as a question of law whether the defendant instituted the particular action with or without probable cause. As was said by Mr. Justice Marshall in King v. Apple River Power Co., 131 Wis. 575, 111 N.W. 668, 669, 120 Am.St.Rep. 1063, 11 Ann.Cas. 951: “Whether there was probable cause in a case of this sort is solely a question of law for the court where the facts are undisputed. The province of the jury is to deal with the controversy as to facts where there is a dispute in that respect, but such controversy being settled the ultimate question is for the court.”

In Leslie v. Knudson, supra, it was said: “The trial court took the undoubtedly correct view that, where the facts are undisputed, probable cause [in a malicious prosecution action] is a question of law for the court.”

See, also, 18 R.C.L. 58. It is there stated: “The general rule of the common law, sustained by the overwhelming weight of...