Weisenberger v. Mueller, 7679

• Decision Date: 10 March 1958
• Docket Number: No. 7679,7679
• Citation: 89 N.W.2d 559
• Parties: Jacob WEISENBERGER, Plaintiff and Respondent, v. H. E. MUELLER, Defendant and Appellant.
• Court: North Dakota Supreme Court

Page 559

89 N.W.2d 559

Jacob WEISENBERGER, Plaintiff and Respondent, v. H. E. MUELLER, Defendant and Appellant.

No. 7679.

Supreme Court of North Dakota.

March 10, 1958.

Rehearing Denied April 29, 1958.

Syllabus by the Court

1. The correctness of a trial court's ruling upon a motion for judgment notwithstanding the verdict depends upon whether the moving party was entitled to directed verdict at the time his motion for a directed verdict was made.

2. In reviewing the correctness of a trial court's order denying a motion for judgment notwithstanding the verdict the Supreme Court must take the view of the evidence which is most favorable to the party in whose favor the verdict was rendered.

3. In an action for malicious prosecution, evidence, which tends to establish that there were no grounds, in fact, for believing plaintiff guilty of the crime charged, is prima facie proof of want of probable cause.

4. One who institutes a criminal prosecution upon information received from a third party has probable cause therefor if he, in fact, received the information, if he reasonably believed it, and if, upon the basis of the information, he reasonably believed the accused was guilty of the crime charged.

5. The question of the credibility of witnesses is an issue for the jury.

6. The question of the existence of a belief, essential to the existence of probable cause, on the part of a prosecutor, is one of fact for the jury.

7. The binding over of an accused for trial, by a magistrate, after a preliminary hearing, is prima facie evidence of probable cause for the prosecution.

8. A legally registered brand on livestock is prima facie evidence that an animal bearing the same is the property of the owner of the brand. (Sec. 36-0919, NDRC 1953 Supp.)

9. Where a requested instruction correctly states the law and is pertinent to the issues in a case it is error to refuse to give it, unless the subject matter is adequately covered by other instructions.

10. In an action for malicious prosecution, motions and affidavits made by persons other than the defendant, upon the basis of which an order dismissing the prosecution was made, are not competent evidence.

11. In an action for malicious prosetion, an order dismissing the prosecution is competent and material evidence to establish that the prosecution terminated favorably to the plaintiff, but such order is admissible for no other purpose and where the fact of favorable termination is admitted by the defendant such evidence becomes immaterial.

Hyland, Conmy & Donahue, Bismarck, for appellant.

J. K. Murray, Bismarck, for respondent.

Milton K. Higgins, Bismarck, amicus curiae.

BURKE, Judge.

In his complaint in this action plaintiff alleged that the defendant had maliciously and without probable cause instituted a criminal proceeding against him in which he was charged with the embezzlement of a heifer; that such proceeding had terminated favorably to the plaintiff and that he had been damaged in the sum of $50,000. The defendant answered, denying generally the allegations of the complaint, alleging affirmatively that plaintiff had been guilty of the crime charged and counterclaiming for the value of the heifer alleged to have been embezzled. The action was tried in the District Court of Mercer County. During the trial and at the close of the testimony the defendant moved for a directed verdict. This motion was denied and the jury returned a verdict in favor of the plaintiff. Thereafter defendant moved for judgment notwithstanding the verdict. This motion was denied and defendant has appealed both from the order denying the motion for judgment notwithstanding the verdict and from the judgment which was entered in the case. We shall consider first the questions raised upon appeal from the order denying the motion for judgment notwithstanding the verdict.

The correctness of the trial court's ruling on such a motion depends upon whether the moving party was entitled to a directed verdict at the time the motion therefor was made. Olson v. Kem Temple, 78 N.D. 263, 49 N.W.2d 99; Lee v. AAA N. D. Auto Club, N.D., 68 N.W.2d 835. The motion for a directed verdict was upon grounds as follows:

1. That there was no proper proof of malice.

2. That there was no proper proof of want of probable cause.

3. That the undisputed evidence shows probable cause to exist.

4. That the undisputed evidence establishes completely the legal defense that the defendant acted upon the advice of the special Assistant Attorney General after a disclosure of the facts in his possession.

The record in the case disclosed that plaintiff, for many years prior to the incidents which gave rise to the present controversy between the parties, had been the operator of a cattle ranch owned by the defendant. The contract between the parties was in writing and, by its terms, the plaintiff was entitled to one fourth of the increase in the herd as compensation for his services. During the term of the contract, and particularly during the last two years thereof, certain incidents had occurred which caused the defendant to suspect the plaintiff of stealing from him. As a result, bitter words had passed between the parties. Defendant told plaintiff that he would be lucky if he didn't die in the penitentiary and plaintiff replied by calling defendant vile names and ordering him off the premises. In August 1950, defendant notified the plaintiff in writing that the contract between the parties would be terminated on November 1, 1950, and directed the sale of the entire 1950 calf crop prior to that date. On November 9, 1950 defendant notified the plaintiff that he had sold the ranch and that the purchaser was entitled to possession whenever he wanted it.

Clifford Tysver, a farmer who resided about two and one half miles from defendant's ranch, testified that he called on the defendant early in February 1951, and asked if he might go to the ranch and inspect a shock loader, located on the premises, with a view to purchasing it. At this time, according to the testimony of both Tysver and the defendant, defendant instructed Tysver to look around at the ranch 'for anything that appeared to be wrong so far as his interests were concerned.' According to Tysver, he went to the ranch on February 16th when the plaintiff was not at home. He had brought plaintiff's mail with him and finding the door to the porch locked tied the package of mail to the door knob with a piece of bailing wire he had found on a fence post. He looked at the shock loader which was located about four rods south of the house. He then went to the barn which was three rods north of the house. There, he said, he found evidence of recent butchering; a hide, a head, legs and entrails. The hide bore the brand 'HM connected' which was defendant's brand. The hide was slightly frozen. He took it home with him and cut out a piece from the right shoulder on which the brand had been placed. The next day he called on the defendant, gave him his version of what had happened and delivered the piece of hide bearing defendant's brand. The next business day February 19th defendant drove to Bismarck and consulted with an Assistant Attorney General. As a result of this conference Mr. T. A. Sailer of Hazen was appointed a Special Assistant Attorney General to investigate the facts and to institute a prosecution if it was warranted. On February 21st, a group of men, which included Melvin Erickson of the State Bureau of Criminal Investigation, the Sheriff of Oliver County, a Deputy Sheriff, State Brand Inspector, Reuben Goetz, Highway Patrolman, Lynn Amsden, and the defendant went to the ranch with a search warrant. They examined all the cattle they could find, sheering off the long winter hair to disclose the brands. All of the cattle except one bore the brand of the plaintiff. The odd one had a blurred brand on its right shoulder. The proper place for plaintiff's brand was on the right ribs and for defendant's brand, on the right shoulder. They also found the carcass of a recently butchered animal, hanging in a shed.

The plaintiff returned to Hazen with the officers. There, in Mr. Sailer's office he was questioned for about two hours. He stated that, during the questioning, he told the officers that he had the hide, that had been taken from the carcass the officers had found, in a stall in his barn and that he would bring it to town the following day. His further testimony with respect to this hide is that he did bring the hide to town the next day; that he offered to show it to Mr. Sailer, but that Mr. Sailer told him to take it to the butcher shop; that he went to the butcher shop intending to leave the hide but that there a friend advised him not to let the hide out of his possession since he might have to have it to prove his innocence; that thereafter until warm weather he kept this hide locked in the trunk of his car.

Upon the advice of the Special Assistant Attorney General, the defendant signed a complaint charging the plaintiff with the embezzlement of a heifer. The complaint was signed on February 26th. Plaintiff was arrested the same day and a preliminary hearing on the charge was held the next day. At the preliminary hearing the principal witnesses were the defendant and Tysver. Plaintiff did not testify nor did he produce the hide he claimed had been taken from the slaughtered animal. He was bound over for trial in the district court and was released upon posting cash bail in the sum of $2,000. The case was dismissed without trial on the merits, on motion of the Attorney General of North Dakota and the State's Attorney of Oliver County on October 15, 1951. In April 1954 this action was commenced.

Because we believe it to be of controlling importance on this phase of the appeal, we shall direct our consideration first to the evidence concerning the want of, or the existence of, probable cause. In this consideration we must take the view of the...