Wren v. Rehfeld
| Decision Date | 11 April 1916 |
| Docket Number | 3823 |
| Citation | 157 N.W. 323,37 S.D. 201 |
| Parties | ELIZABETH WREN, Plaintiff and respondent, v. GUSTAV W. REHFELD, Defendant and appellant. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Roberts County, SD
#3823--Affirmed
Geo. S. Rix, D. J. Leary
Attorneys for Appellant.
Attorneys for Respondent.
Opinion filed April 11, 1916
Action for malicious prosecution, verdict and judgment for plaintiff. Defendant appeals from the judgment and an order denying a new trial.
The husband of plaintiff was a tenant of defendant, and also a lessee of certain Indian lands in Roberts county. Defendant came on the scene with two men and attempted to drive off the cattle and horses of plaintiff's husband, claiming they were, or had been, damaging his cornfield. There was also a dispute between defendant and plaintiff's husband about some hay and a misunderstanding in regard to the use by defendant of some of the land leased to plaintiff's husband. Plaintiff's husband, two sons, and a daughter attempted to prevent the driving away of the livestock, and finally plaintiff appeared with a shotgun and discharged it. Defendant claims that she aimed and shot at him. The testimony on behalf of plaintiff tends to show that she aimed and shot in the air. Defendant caused plaintiff's arrest upon a charge of assault with intent to kill, and on the trial in the circuit court she was acquitted, hence this action.
The errors assigned may be considered under four heads.
It is first urged that plaintiff's expenses and attorney's fees in the criminal action are not proper elements of damage in this case. We agree with the following rule laid down in 26 Cyc. 63:
"Expenses incurred or paid about the original proceeding by plaintiff and attorney's fees which have been incurred by him, if reasonable and necessary, so far as they are shown to have been an actual and, proximate consequence of the act complained of, are items of damage which may be awarded plaintiff to the extent of their proved value."
It is next claimed that the court erred in rejecting the transcript of the testimony of two witnesses who testified in the criminal action. The offer was objected to, among other grounds, for the reason that:
"It is not shown that the witness whose testimony is sought to be produced here cannot be produced at the trial, and it is not shown that the defendant has used any diligence or made any effort, sufficient effort, to secure their attendance at the trial as witnesses."
It did not appear that the witnesses were beyond the reach of process. In fact, no showing of any kind was made to justify the admission in evidence of the transcript. There was no error in the ruling of the court. State v. Heffernan, 24 S.D. 1, 123 N.W. 87, 25 L.R.A. (N. S.) 868, 140 Am. St. Rep. 764; Jones on Ev. §§ 341, 342.
It is next urged that the court erred in denying defendant's motion for a directed verdict. Appellant claims that there was no evidence showing or tending to show malice. We cannot agree with this assertion. Without detailing the evidence in that behalf, we are of the opinion that there was a number of things which had a tendency to show malice, provided the jury believed plaintiff's witnesses. Appellant claims that the evidence showed without dispute that there was probable cause for the institution of the criminal action; that he made a full and fair disclosure of the facts, both to his own attorney and to the state's attorney of Roberts county, and was advised by both to proceed with that action. It does fairly appear that the defendant stated to these attorneys substantially the same facts that he testified to on this trial as to the occurrences in the cornfield, and that these attorneys made inquiry of the two men who accompanied the plaintiff, but these occurrences, as testified to by defendant at this trial and as recounted to the attorneys, were not the occurrences which the plaintiff's five witnesses testified to. There was a decided conflict in regard thereto between the two sets of witnesses. The trial court rightly ruled that, when there is a substantial conflict in the evidence as to the facts, then the questions of probable cause and of acting under advice of counsel are for the jury. It is not claimed that either attorney investigated or was informed as to the Wren family's version of the facts.
Appellant lastly challenges certain portions of the instructions to the jury herein marked (a), (b), and (c):
(a) "But if, on the other hand, you find that the defendant was upon thee lands owned or leased by the husband of the plaintiff against his will, then the defendant was a trespasser thereon, and you further find that the defendant was attempting to take away therefrom...
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O'Connor v. Bonney
...show that it is impossible for him to procure the attendance and testimony of the witness.” This rule is approved and followed in Wren v. Rehfeld, 157 N.W. 323. There is no claim that each of the three witnesses whose testimony on the former trial was thus indirectly placed before the jury ......
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Pierce v. Lyons
...of error under this head were based, the question is not properly before us. Suffice it to say that in this case, as in Wren v. Rehfeld, 157 N.W. 323, the version of the affair told the prosecuting attorney by appellant was not the version established my respondent's Lastly, appellant alleg......