White v. International Text-Book Co.

• Decision Date: 07 May 1912
• Citation: 136 N.W. 121,156 Iowa 210
• Parties: HENRY L. WHITE, Appellant, v. INTERNATIONAL TEXT BOOK CO., and O. O. CRANE, Appellees
• Court: Iowa Supreme Court

136 N.W. 121

156 Iowa 210

HENRY L. WHITE, Appellant, v. INTERNATIONAL TEXT BOOK CO., and O. O. CRANE, Appellees

Supreme Court of Iowa, Des Moines

May 7, 1912

Appeal from Linn District Court.--HON. MILO P. SMITH, Judge.

ACTION for malicious prosecution. At the conclusion of plaintiff's testimony, the trial court, upon defendants' motion directed a verdict for the defendants. Plaintiff appeals.

Reversed.

John N Hughes, and C. R. Sutherland, for appellant.

F. L Anderson and C. D. Harrington, for appellees.

OPINION

DEEMER, J.

This is the third appearance of the case before this court. Opinions on the other appeals will be found in 144 Iowa 98, and 150 Iowa 27. In these two opinions it was held there was enough testimony to take the case to the jury upon every issue tendered on the last trial in the district court save one, and that was a plea to the effect that the criminal proceeding was settled and dismissed at plaintiff's instance and request, and that, having been so disposed of, the action was not determined in such a manner as to entitle plaintiff to sue for malicious prosecution. That question was argued on the second appeal, but we did not decide it, because no such issue was made by the pleadings as they then stood. To the issue thus tendered on the last trial plaintiff filed a reply in which he denied the alleged settlement, and further pleaded that the money which he paid to defendant or its agent was obtained from him by duress, that the payment was involuntary and against his will and, because of his then imprisonment, that the payment was under protest and with knowledge on the part of the defendant Text-Book Company that he did not owe it anything. After hearing plaintiff's testimony, the trial court thought the showing conclusive against a right to recover, and it refused to submit the issue of the nature of the payment to the jury.

If the verdict was directed upon any other ground, then the order was erroneous because on former appeals we held that, under the issues as then presented, there was enough testimony to take the case to the jury on each and every proposition. This made the law for the case; and, whether correct or not, it was the duty of the trial court to observe and follow our previous decisions. This is too fundamental to require the citation of authorities in its support, but see Hensley v. Davidson Bros., 135 Iowa 106, 112 N.W. 227; Russ v. Am. Cereal Co., 121 Iowa 639, 96 N.W. 1092, and cases cited.

The sole question which we may consider upon this appeal is the effect to be given the testimony as to the payment made by the plaintiff while he was under arrest and in jail. It is true, of course, as a general rule, that a settlement or attempted settlement of a debt with the accused does not of itself show that the proceedings were instituted without probable cause, and it is also true, as a general rule, that a dismissal of the proceedings by procurement of the accused, or by reason of a settlement between the parties, is not a sufficient termination of the proceedings to justify an action by the defendant therein for malicious prosecution. Holliday v. Holliday, 123 Cal. 26 (55 P. 703); Emery v. Ginnan, 24 Ill.App. 65. But it is also true that, if one arrests another on a criminal charge for the purpose of compelling the payment of an indebtedness, an agreement not to prosecute further upon payment of the debt is prima facie evidence of want of probable cause and conclusive in the absence of satisfactory evidence to the contrary. Prough v. Entriken, 11 Pa. 81. Now, while there is an apparent conflict in the case as to the effect of a settlement and dismissal of a criminal action upon an action for malicious prosecution, the great weight of authority seems to favor the proposition that where a criminal proceeding is dismissed or abandoned by procurement of the party prosecuted, by settlement or compromise with the prosecutor, it is not such a final determination of the matter in his favor as will support an action for malicious prosecution. Brown v. Randall, 36 Conn. 56 (4 Am. Rep. 35); Craig v. Ginn, 19 Del. 117, 3 Pennewill 117 (48 A. 192, 94 Am. St. Rep. 77, 53 L. R. A. 715); Morton v. Young, 55 Me. 24 (92 Am. Dec. 565); Langford v. Boston R. R., 144 Mass. 431 (11 N.E. 697); Sartwell v. Parker, 141 Mass. 405 (5 N.E. 807); McCormick v. Sisson, 7 Cow. (N. Y.) 715; Lamprey v. Hood, 73 N.H. 384 (62 A. 380); Welch v. Cheek, 125 N.C. 353 (34 S.E. 531); Russell v. Morgan, 24 R.I. 134 (52 A. 809). In an early case Lord Tenterden said: "I think this mode of termination does not furnish any evidence that the action was without probable cause. If this should be allowed, the defendant would be deceived by the consent, as, without that, he would certainly have gone on with the action, and might have shown a foundation for it. I have no doubt about it." Wilkinson v. Howel, 1 M. & M. 495. The reason for the rule seems to be that where the termination of the ease is brought about by a compromise or settlement between the parties, understandingly entered into, it is such an admission that there was probable cause that the plaintiff can not afterwards retract it and try the question which by settlement he waived. Emery v. Ginnan, 24 Ill.App. 65.

But in many of these cases exceptions are created to the effect that the settlement must have been voluntary and understandingly made. For instance, in Morton v. Young, supra, the Supreme Court of Maine said, among other things:

The same legal consequences do not follow acts done under duress of arrest and protest as when done freely and voluntarily, under the abuse as under the legitimate use of legal process. Suppose that, instead of settling the defendant's demand, the plaintiff had given him a deed or bond, how could he defend an action brought on such instrument if the fact of his giving it is conclusive evidence that the defendant had a valid claim against him? Is the plaintiff the worse off for having paid his money than he would have been if he had given a deed or bond to get his liberty? . . . There is nothing in principle, and we have not found anything in authority, which places a party upon less favorable footing who pays his money to procure his release from arrest on a groundless suit than he who gives his bond or deed for the same purpose. If he may avoid the latter, he may recover the former. . . . The law does not make successful wrong a shield to protect its perpetrator from liability to afford redress to the injured party. If the wrongdoer has his hour of triumph, his hour of retribution is sure to come at last. The man who falsely, maliciously, and without probable cause sues out a process, arrests another, and compels him to pay money to procure his liberty commits a wrong for which the law affords the sufferer redress in damages. The suing out of legal process is an abuse of the law to cover the fraud, the very wrong which the action for malicious prosecution was instituted to redress. It would be a reproach upon the law if it should allow the payment of the money thus wrongfully and illegally extorted from the plaintiff to have any legal effect against him. In Watkins v. Baird, 6 Mass. 506 (4 Am. Dec. 170) the court, Parsons, C. J., held, not only that a deed given to procure the deliverance of a party from unlawful arrest and imprisonment on a groundless claim was void, but that an action of malicious prosecution might properly be maintained. Pierce v. Thompson, 23 Mass. 193, 6 Pick. 193.

Again in Marcus v. Bernstein, 117 N.C. 31 (23 S.E. 38), the Supreme Court of North Carolina said:

In Langford v. Railroad Co., 144 Mass. 431, 11 N.E. 697), it was held that: 'Where a nol pros. is entered by the procurement of the party prosecuted, or by his consent, or by way of compromise, such party can not have an action for malicious prosecution.' We do not think, however, that the facts in the present case make an exception to the general rule. The plaintiff protested all the time that his arrest was malicious and without just cause. There was no compromise, as the plaintiff only paid his debt, which he was in duty bound to do, and the defendant paid the cost of prosecution. This was the arrangement or agreement, and nothing appears to show that the plaintiff procured the nol. pros., any more than that the defendant entered it on his own motion. In fact, his paying the costs rather indicates his desire to have a 'stet processus,' as it is called in the early books, and also indicates that his action was instituted more for the purpose of collecting his debts than because of any criminal offense, or from any patriotic motive, which purpose can receive no sanction in this court, and should not be encouraged in any court. It is an unauthorized mode of the strong controlling the weak. 'Procure' means 'to contrive, to bring about, to effect, to cause.' Webst. Dict. 'Procure' means action, and the nol. pros. must have been at the instance or request of the plaintiff. If it can not be seen at whose instance the dismissal was entered, then the general rule prevails, because the reason and the grounds upon which the exception is based do not appear.

In Robbins v. Robbins, 133 N.Y. 597 (30 N.E. 977), the Court of Appeals of New York said:

The rule, requiring that before an action for malicious prosecution can be maintained the plaintiff is bound to show a termination of the criminal proceeding, has for its foundation that it can not be known that the prosecution was unjust or unfounded until it is terminated; and, if the action for malicious prosecution were allowed to be maintained before the termination of the criminal proceeding the plaintiff might be found guilty in that proceeding and yet maintain her action for malicious prosecution on...