Pierce v. Lyons

GATES, J.

faction for damages for malicious prosecution. From a judgment in favor of plaintiff for $500 and costs, and from an order denying new trial, defendant appeals.

The evidence on the part of plaintiff, which, though in some respects contradicted, we must take as true for the purposes of this appeal, tended to show the following situation: Plaintiff and wife were employed by defendant to work on the farm of defendant north of Rudolph, in Brown -count}', for the season of 1918. It was agreed that the wife was to do the cooking and. housework and was to have half of the chickens raised. Plaintiff and wife stayed on the farm from February 13 to May 8, 1918, and the wife raised 80 chickens. On the Friday before May 8th defendant discharged plaintiff and wife. *546 Plaintiff attempted to get the mone3 due him, but defendant would not pa3r it all. Plaintiff told defendant he did not have money to ship his goods by rail to' Northville, where he had a job; and said he would have to use defendant’s team. Defendant said, “All right,” but kept putting- him off about the money. On May 8th plaintiff loaded his goods and 18 chickens on defendant’s wagon, covered them: with a blanket and two bed comforters to keep off the dew and rain the night "before, and with, defendant’s team drove to Northville. On the road a dog 'belonging to one Foster joined and followed them. After plaintiff had unloaded his property at Northville, defendant came and took himi before a justice of the peace at Northville. Plaintiff was discharged, and defendant took his team- and belongings back to the farm. On the same day defendant filed a complaint in the municipal court of Aberdeen, charging plaintiff with petit larceny, viz., with stealing 18 chickens, two blankets, and a shepherd dog. Plaintiff was again arrested and brought before the court, and on motion of the state’s attorney was discharged. On June n, 1918, defendant filed complaint in the same court charging plaintiff with grand larceny, viz., with stealing two horses, a b^rack, a wide tire wagon, 18 chickens, a horse blanket, and two bed comforters. Plaintiff was again arrested and brought before the court and on motion of his attorney was discharged.

[2] The complaint in this case w!as based upon the arrest under the grand larceny charge only. Appellant complains of the receipt in evidence of the petit larceny proceedings. 'Such evidence was admissible on the question of motive. It -was also evidence tending to corroborate respondent’s claim that he was using appellant’s team and wagon lity permission because the petit larceny charg'e made no reference to the: team. The previous prosecution and dismissal of respondent for larcen3- involving identical articles tended to show malice in the later prosecution. Magmer v. Renk, 65 Wis. 364 , 27 N. W. 26 : Comeford v. Morwood, 34 N. D. 276 , 158 N. W. 258 . Appellant also claims error in requiring him to testif3' that the two complaints related to the same transaction and as to the identity of some of the items in the two complaints claiming- that such testimony was a mere conclusion of the witness. Appellant *547 verified both complaints. His testimony related to facts, not conclusions.

[3] Complaint is next made that error was committed in allowing evidence that respondent lost two days’ time valued at $4 by reason of the prosecution, and that error was ¡committed in submitting to the jury the- question of recovery of $45.95 attorney’s- fees paid by him for defense of the grand larceny charge, because there was- no evidence that such sum was the reasonable value thereof. We do not think the first point merits consideration. The second point was disposed of in Ellwein v. Town of Roscoe, 174 N. W. 748 .

[4] Appellant claims that prejudicial error was committed in refusing him permission to show that at a time previous to his first arrest he had caught respondent carrying away and attempting to dispose of personal property belonging to appellant. He claims that such excluded testimony was admissible on the question of probable- cause. Appellant had already been permitted to testify upon that subject generally. The excluded testimony related to details of the matter that were scarcely material to the question at issue. At least we can see no prejudicial effect from the rulings.

[5] Appellant next discusses the question of his reliance upon advice of counsel; but, as there were no exceptions to the instructions upon which the assignments 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, 37 S. D. 201, 157 N. W. 323 , the version of the affair told the prosecuting attorney by .appellant was not the version established my respondent’s evidence.

[6] Lastly, appellant alleges error in the court’s refusal to direct a verdict for him and insufficiency of the evidence. x\ppellant -rightly 'contends that, when the undisputed evidence shows that the party causing the arrest made a full and- fair disclosure of the facts to counsel, and then in good faith relied upon the advice of counsel, and there is no evidence -of malice other than proof of acquittal, then the question of probable cause is a matter -of law for the court to decide. Krause v. Bishop, 18 S. D. 298, 100 N. W. 434 .

In this casé, as above stated, the version of the facts *548 related to the state’s attorney was not the version established by respondent’s evidence, and besides there was other evidence tending to show malice on the part of appellant. The court did not err in refusing to direct a verdict. Neither was ‘the evidence insufficient to justify the verdict.

The judgment and order appealed from are affirmed.

POLUEY, J,, dissents.