Strehlow v. Pettit

Oassoday, O. J.

We perceive no error in admitting in evidence the letter written three or four days before the issuance of the warrant to the plaintiff by the cashier of the-bank, in behalf of the defendants, requesting her to call at the bank, or the store of the defendants, and pay an account of $2.26 at once, “and save the trouble of taking other steps to collect it.” There is sufficient evidence tending to prove that the letter was written by the authority of the defendants. The admission of evidence as to the age of the plaintiff, and that her parents were both dead, appears to have been without objection. There was no error in admitting the testimony of the plaintiff’s brother-in-law, to- *26 the effect that he told her that Flint had a warrant for her, .and that she must appear before the justice, as mentioned in the foregoing statement. It was a circumstance in connection with the other evidence tending to prove that she was arrested. In overruling the objection the court said? in effect, that if the officer told May “ to tell Laura she ¡must appear at the office, and he did tell her, and she appeared at the office, it is submitting to the jurisdiction of the court.” We find no error in this ruling. Counsel for the defendants concede that the proofs tend to show that April 5 or 6, 1894, the plaintiff employed the attorney mentioned, “ and with him called at the justice’s office, as requested by Flint, and that the plaintiff, by her counsel, •thereupon requested that nothing further be done for ten clays,” in order that matters might be arranged with the parties. The substance of the complaint and warrant in the •criminal proceeding is given in the foregoing statement. They may be insufficient to charge the offense of embezzlement prescribed by the statute. S. & B. Ann. Stats, secs. 4418, 4667; White v. State, 20 Wis. 233 . Whether they were void on their face, and charge no crime of embezzlement, as held by the trial court, or were sufficient to give the justice jurisdiction, and hence subject to amendment before the justice, it is not necessary to determine in this action. This court has expressly held that, “it is no defense to an action for malicious prosecution that the complaint made by the prosecutor failed to state any offense, and that the warrant issued thereon was void.” Lueck v. Heisler, 87 Wis. 644 ; Beuthner v. Ellinger, 90 Wis. 439 . This is in harmony with the ruling of the English courts. Wicks v. Fentham, 4 Term, 247; Pippet v. Hearn, 5 Barn. & Ald. 634.

We think the evidence is sufficient to sustain a finding to the effect thát the prosecution against the plaintiff was actually commenced, and that in the pursuance thereof she submitted herself to the jurisdiction of the justice. The evi *27 dence is also sufficient to sustain the finding to the effect that such prosecution had terminated before the commencement of this action, within the decisions of this court. Woodworth v. Mills, 61 Wis. 44 ; King v. Johnston, 81 Wis. 578 ; Lawrence v. Cleary, 88 Wis. 473 . These principles of law, and the sufficiency of the evidence mentioned, dispose of several of the errors assigned.

There are seventeen assignments of error for refusing to charge the jury. Several of them are overruled upon the principles already stated. Several of them relate to a single isolated feature of the case, having its significance in connection with other evidence and circumstances in the case, and hence were properly refused. Such isolated facts or items of evidence could not properly be thus eliminated from the case, as a matter of law, by the trial court. The court properly charged the° jury to the effect that the plaintiff must prove, in order to maintain this action, that the prosecution was instituted by the defendants maliciously and without probable cause; that both of these facts must concur; that the want of probable cause is a material averment and, though negative in its character, must be proved by some affirmative evidence, unless the defendants dispense with the proof by pleading the truth of the facts involved in the action; that it is independent of malicious motive and cannot be inferred as a necessary consequence from any degree of malice that may be shown (Newell, Mal. Pros. 246, § 12; 14 Am. & Eng. Ency. of Law, 17); and that both questions "were questions of fact to be determined by the jury from the evidence given on the trial. In .another connection the court, after charging the jury to the effect that, if a prosecutor fully and truly states the facts of which he complains to some one learned in the law and admitted to practice in the courts of record of the state, and is advised by him that such facts constitute a criminal offense, for which he then prosecutes, such counsel drawing the complaint for the crime *28 accordingly, the prosecutor and attorney both acting in good faith, — - this state of facts makes out a case of probable cause-anda complete defense to the action, added these words: “ That is, where neither the attorney in such case nor the party sets on foot the prosecution to collect a debt. If the prosecution in such case is instituted, notwithstanding the advice of counsel, for the purpose of collecting a debt, that would be, as I have once before stated to you, a malicious prosecution.” And in another portion of the charge the jury were told that: “ But here again I will state that, if the main object in setting on foot a criminal prosecution is to collect a debt against the party thus prosecuted, the advice of counsel learned in the law will not constitute any defense to an action for malicious prosecution. The use of criminal proceedings to collect a debt against the party prosecuted is wholly unjustifiable, and*its use for such purpose is malicious prosecution.”

The learned trial judge may, as suggested bjr counsel on the argument, have been misled into so charging the jury by some things inadvertently said in Lueck, v. Heisler, 87 Wis. 644 . That case was correctly decided. As there, in effect, held, a criminal prosecution for the purpose of collecting a debt, or to secure some other private or ulterior benefit, is evidence of malice, and may, in certain cases, be conclusive. Spain v. Howe, 25 Wis. 625 ; Magmer v. Renk, 65 Wis. 364 . But such prosecution for such purpose, though malicious, does not of itself constitute malicious prosecution. To be malicious prosecution, it must be without probable cause. Malice may be inferred from a want of probable cause. Newell, Mal. Pros. 240, 247, §§ 10, 13, 14. As to what, in a legal sense, constitutes malice, is a question of law for the court; “ but the question of the existence of the circumstances which go to make up the essential elements of malice in a particular case is purely a question of fact, and is for the jury to determine.” Id. §15. The same learned author says: “Malice *29 may be inferred by tbe jury from a want of probable cause, but tbe want of probable cause cannot be inferred from any degree of express malice.” Id. 265, § 3. Another authority declares that “ while juries may find malice from the facts that establish want of probable cause, the most express malice is not evidence of want of probable cause.” 14 Am. & Eng. Ency. of Law, 64. In the same book it is stated: “ Probable cause is the existence of such facts and circumstances as would excite the belief in a reasonable mind, acting on the facts within the knowledge of the prosecutor, that the person charged was guilty of the crime for which he was prosecuted. Such facts and circumstances must not only exist, but the defendant must have believed in the guilt of the plaintiff.” Id. 24, 26. And again: “ It is stated broadly in many cases that a plaintiff who, after consulting counsel in good standing, and fully disclosing the facts of his case within his knowledge, acts upon the advice of such counsel, is not liable in a suit for malicious prosecution for bringing such action. This is so because it disproves malice and shows probable cause.” Id. 53-55. This court has held that the only difference in “express malice” and “implied malice” is in the mode of proving the same. Wilson v. Noonan, 35 Wis. 352 . It follows, from these authorities, that a jury is not justified in finding a want of probable cause from the mere fact that a criminal prosecution has been instituted for the purpose of collecting a debt.

By the Court.— The judgment of the circuit court is reversed, and the cause is remanded for a new trial.