Plath v. Braunsdorff

Lyon, J.

1. Some objections were made on the trial to the plaintiff’s right to show that he was the guardian of Rosina Plaig, and to his competency to maintain an action in her behalf. But these objections go only to matters in abatement of the action, and are unavailable to the defendant, because his answer is in bar only. If he desired to contest the right of the plaintiff guardian to bring the action, he should have pleaded the disqualifying matters specially, so that judgment for him would not be a bar to a subsequent action for the same cause pr*operly brought by the ward or in her behalf. That a judgment for the defendant on the present pleadings *111 would, be an absolute bar to another action for the same cause, we cannot doubt. The doctrine that matter in abatement must be specially pleaded to be available, is laid down, and the g-rounds upon which it rests áre fully stated, by the chief justice in the late case of Dutcher v. Dutcher, 39 Wis., 651 ; where the cases in this court on that subject are collected.

2. The charge of perjury is predicated upon testimony given by Rosina on the 'trial of a certain action before a justice of the peace; and the circuit court permitted the plaintiff to show, against objections by the defendant, how such action terminated; also to prove certain things that transpired on the trial thereof. Testimony was offered by the defendant, and rejected by the court, which would have tended to show that a sister of Rosina was also prosecuted for perjury for testifying as Rosina did, on the trial of the action before the justice, and that the sister was examined and held to bail.

Some of these rulings are quite immaterial and harmless. So far as they are material or of any significance in the case, they are believed to be entirely correct. It would be unprofitable to discuss them in detail.

3. The -testimony on the trial tended to show that the defendant instituted the prosecution for perjury against Rosina in good faith, under the advice of counsel jnot the district attorney of the proper county, however, but of private counsel); yet it cannot be successfully denied that on the question of good faith the testimony is conflicting, and tends as well to prove that the defendant was actuated by malicious motives -in so doing.

The perjury is assigned upon testimony given by Rosina on the trial of an action between her father and the father of the defendant, to the effect that she saw the defendant and his father do a certain act on a certain day, or rather on one of two days named by her. It is not denied that they did the act as she stated; but it was claimed that the act was not .done on either of the specified days. This inaccuracy of date *112 is the alleged perjury. It may as well be observed here as elsewhere, that the particular day upon which the above mentioned act was done was entirely immaterial to the issue in that action, and even though Eosina testified willfully to a wrong date, it is not perjury. It would seem to follow that there was not, and could not have been, any probable cause for believing that by testifying as she did she committed the crime of perjury.

The learned circuit judge instructed the jury, among other things, that to maintain the action the plaintiff must prove that the complaint for perjury was made maliciously and without probable cause; and the questions of malice and probable cause were submitted to the jury on the testimony. The charge was not excepted to; but were we to criticise it, we should say that it is quite as favorable to the defendant as the law will permit. For reasons already stated, had the court taken from the jury the question of probable cause, it would not have been error. Furthermore, the jury were told that “ if there was not probable cause for his making the complaint, still if he made a full statement of the facts in the case to Phalen, his counsel, and he relied upon the advice of Phalen after making such statement, and acted upon it in good faith in making the complaint an,d causing the arrest of Eosina, in either case he is justified, and the plaintiff cannot recover in this action.” They were also told that “ the advice of an attorney at law, given in good faith and with a full knowledge of the facts involved in the issue to be tried, is a complete defense to an action for malicious prosecution on account of such trial.” Were this the appeal of the plaintiff, we should hesitate to say, without argument and deliberation, that the defendant might ignore the district attorney, whose official duty it is to advise and act in such cases, and shield himself behind the advice of any private counsel he may see fit to consult. However, we do not decide this point.

Certain instructions to the jury were proposed on behalf of *113 the defendant, which the court refused to give. We are of the opinion that the charge of the court to the jury covered the whole case, and included all that could properly have been given of the proposed instructions.

4. The views above expressed dispose of the grounds upon which the motions for a nonsuit and new trial were based (except the claim on the latter motion that the damages were excessive), adversely to those motions.

On the question of damages, it is enough to say that, under the testimony, the jury may have found, and probably did find, that the criminal prosecution complained of greatly injured Eosina’s health and rendered her insane, besides creating a predisposition to mental aberration. This was and is a great personal calamity, and would of itself uphold a verdict for very considerable damages, even were the plaintiff’s recovery limited to actual or compensatory damages. But when, in addition to this, we consider that the jury were authorized to give exemplary damages also, we are quite unable to say that a verdict for three thousand dollars damages is excessive. Under all of the circumstances of the case, we do not feel authorized to disturb the judgment on that ground.

Finding no material error in this record of which the defendant can justly complain, we must affirm the judgment of the circuit court.

By the Gowrt, — Judgment affirmed.