Arkansas City Bank v. McDowell

7 Kan. App. 568 | Kan. Ct. App. | 1898

The opinion of the court was delivered by

Dennison, P. J. :

It is claimed by the plaintiff in error that there is no evidence that James L. Britton was authorized by the bank to act for it in causing the arrest and imprisonment of McDowell. The petition alleges the authority of Britton, and this allegation is not denied under oath and must be taken as true.(Gen. Stat. 1897, ch. 95, § 108.) Besides this, the acts of the parties and the surrounding circumstances support the finding of agency made by the jury.

It is also claimed that Britton, by stating all the facts in his possession to reputable attorneys, and being by them advised that the McDowells were guilty of the larceny of the cattle, had probable cause to believe them guilty. The jury, in answer to a special question, say they do not know whether he stated all the facts in his possession to the attorneys but that he did consult reputable attorneys. We think the jury were justified in making this finding. Britton evaded the question as to just what he told the attorneys'but says he did tell them that the bank owned the cattle. The jury find also that the bank did not own the cattle, but that Beach & Feagins owned the cattle and the bank held them as security for the payment of Beach & Feagins’s notes. But even though Britton told the attorneys all the facts, and admitting that this conclusively establishes probable cause and lack of malice, yet this would be no defense to the charge of false imprisonment.

Counsel for the plaintiff in error also contend that the court erred in admitting in evidence the transcript of the proceedings before Commissioner Meadows for the reason that it was not properly authenticated. It is unnecessary to determine this question, as the answer admits all the facts which the transcript tended to prove ; and if its admission was error it is immaterial error and not prejudicial to the substantial rights of plaintiff in error.

“Whatever is admitted in a special defense operates, so far, as a modification of a general denial, and is to be taken as true, without other proof.” (Wiley v. Keokuk, 6 Kan. 94.)

The next alleged error is that Theophilus was permitted to testify that the plaintiff in error had employed and paid Atkinson and Theophilus to represent the prosecution in the criminal case before the justice of the peace in which the McDowells were defendants. Testifying that they were attorneys, for the plaintiff in error is not a communication made to them by their client, or their advice thereon. It is simply a statement as to who the client is. This is not a privileged communication.

All the other errors complained of which we think worthy of consideration are directed to the allegations of the petition. It is claimed by counsel for plaintiff in error that the petition charges only false imprisonment and that any evidence or instructions tending to establish malice or probable cause were erroneously allowed and given. The petition attempts to state a cause of action based upon the whole transaction and to treat it as one continuous wrong. It alleges that McDowell was imprisoned in the jail at Winfield, and then taken to Guthrie and there imprisoned. It must be conceded that, as to the imprisonment in the jail at Winfield, the petition is defective in charging either malicious prosecution or false imprisonment. But it must also be conceded that the allegations of the answer cured the defective allegations of the petition. (See Irwin v. Paulett, 1 Kan. 418; Mitchell v. Milhoan, 11 id. 617; Campbell v. Coonradt, 22 id. 705; Bierer v. Fretz, 32 id. 329; Clay v. Hildebrand, 34 id. 694.)

In the case at bar, the questions of malice and probable cause were squarely put in issue by the answer of the plaintiff in error, to which the defendant -in error filed a general denial. The case was tried by the plaintiff in error upon the theory that probable cause for the prosecution and want of a malicious motive in instituting it would be a good defense to the action. In its statement to the jury, in the evidence, in the instructions asked for — the eighth, twenty-third and fifty-third of which were given by the court — and in the special questions submitted to the jury, the plaintiff in error recognized that the questions of'malice and probable cause were in issue. In fact, it was the plaintiff in error who brought these questions into the case.

The proceedings held in Cowley county constituted a malicious prosecution, provided Britton had no probable cause for believing the defendant in error guilty of the larceny of cattle, and instituted the prosecution, from malicious motives or for the purpose of enforcing the collection of the debt owing to the bank. 'The proceedings were regular, and there was no false imprisonment in the arrest made under the warrant is: sued by Baxter.

The proceedings had in Oklahoma were void, for the reason that the commissioner who issued the warrant was a commissioner for Oklahoma and not for Kansas. They constituted false imprisonment.

The whole transaction was a continuous proceeding, for the reason that the defendant in error was either under arrest ór bonds from the time of the first arrest until he was released and the case against him dismissed in Oklahoma, on December 23, 1890. ' The' plaintiff in error in this case had a fair trial and was fully apprised of the nature of the claim made against it.

The judgment of the district court is affirmed.