28 Kan. 72 | Kan. | 1882
The opinion of the court was delivered by
This was an action brought by Daniel Dodge against C. A. Bailey, for an alleged malicious prosecution, claiming $10,000 damages. The case was tried in the court below, and judgment was rendered therein in favor of the plaintiff and against the defendant, for $1 and costs; and the defendant, as plaintiff in error, now brings the case to this court, claiming that the judgment of the court below is erroneous. The plaintiff in error (defendant below) claims-that the petition of the plaintiff below does not state facts sufficient to constitute a cause of action; that the court below erred in permitting the plaintiff below to introduce certain-evidence, and in excluding certain other evidence, and in giving certain instructions to the jury, and in refusing to give certain other instructions; that the verdict of the jury was not sustained by sufficient evidence; and that the court below erred in-overruling the plaintiff’s motion for a new trial.
We shall consider th^se claims of error in their order.
I. It is claimed that the petition of the plaintiff in the court below is defective: (1) Because it does not state or allege that the defendant did not have reasonable and probable cause for commencing the supposed .malicious prosecution; (2) because it does not state or allege that the proceedings constituting the supposed malicious prosecution had terminated.
Now it is true that the petition does not allege in terms-
We are inclined to think that the petition, though somewhat defective and informal, must be held to be sufficient, under such circumstances. If a motion had been made to require it to be made more specific and definite, of course the petition should not have been held sufficient as against such a motion.
II. It is claimed that the court below erred in permitting the plaintiff to introduce evidence tending to show the financial condition and circumstances of the defendant. Upon this question the authorities would seem to be somewhat conflicting. The great weight of authority would seem, however, to permit such evidence to be introduced in actions for slander; and this action for malicious prosecution partakes to some extent of the nature of that action. In both actions the character of the plaintiff is involved. In both actions the plaintiff is required to show malice on the part of the defendant. And in both actions the plaintiff, if he recovers, may recover exemplary or punitive damages. In the case of Whitfield v. Westbrook, 40 Miss. 311, which was an action for malicious prosecution, it was held that evidence showing the pecuniary condition of the defendant might be introduced for the purpose of increasing or diminishing the damages. The case of Weaver v. Page, 6 Cal. 681, which was an action
It is also claimed that the court below erred in permitting certain evidence to. be introduced tending to impeach the testimony of one of the defendant’s witnesses. We are inclined to think, however, that the court below ruled correctly in this particular.
III. It is also claimed that the court below erred in ex- • eluding certain evidence; but we are inclined to think that the court below properly excluded the evidence.
IV. It is claimed also that the court below erred in refusing to give certain instructions to the jury. We are inclined to think that the court below did so err; but the defendant, according to many authorities, did not save the error by proper exceptions. The defendant asked the court to give thirteen separate instructions, some of which are good law and ought to have been given, while others were properly refused. The exception to the refusal of the court to give these thirteen instructions seems to be general. It is stated in the following words, to wit: “The above and foregoing are all the instructions asked for by the defendant, each and all
V. The plaintiff in error (defendant below) assigns for error, that the court below erred in instructing the jury; but he does not seem to insist upon this assignment of error in his brief, and therefore we shall pass to the next question.
VI. The plaintiff in error (defendant below) claims that the verdict of the jury is against the law and the evidence, and therefore that the court below erred for that reason-as well as for others in overruling his motion' for a new trial. He claims that the verdict is against the law and the evidence, for the reason that no malice on the part of the defendant was shown; that it was not shown that the supposed malicious prosecution had finally terminated; and that it was-not shown that the defendant did not have reasonable and probable cause for the commencement of the supposed malicious prosecution.
Now as there was some evidence introduced tending to show malice and tending to show a termination of the supposed malicious prosecution, we shall pass over these two questions to-the third, for upon these two questions we suppose the verdict of the jury is final. The other question — that is, whether any want of probable cause for the supposed malicious prosecution-was shown — is the main question in the case; and yet the action seems to have been instituted by the plaintiff below, and-tried by him all the way through, as though no such question was involved in the case at all. His petition did not allege any want of probable cause except inferentially, and, as we think, there was not a particle of evidence introduced tending to show any such Want of probable cause.
The facts of the case, as they appear from the pleadings and the evidence, are substantially as follows: In 1879, School District No. 56, of Osage county, Kansas, owned certain real and personal property, among which was the following: One cedar water bucket, one school dictionary, one lamp, and four window curtains. The dictionary was Webster’s .unabridged dictionary. The window curtains
“State oe Kansas, Osage County.— C. A. Bailey, being duly sworn, says that Daniel Dodge, on or before September 10th, 1879, in the county of Osage and state of Kansas, did then and there feloniously take, steal and carry away one cedar water bucket, one school dictionary, one lamp and four window curtains, value fifteen dollars, property of School District No. 56. Said property is concealed in Daniel Dodge’s house. C. A. Bailey.
“Subscribed and sworn to before me, this 25 th day of March, 1880. S. J. "Watson, J. P.”
The defendant then filed the affidavit with the justice of the peace, and the justice issued the following warrant, to wit:
“The State op Kansas, Osage County, ss. — The state of Kansas to B. G. Wilson, constable of Fairfax township, in said county: Whereas, it appearing that there are reasonable grounds for suspecting that one cedar bucket, one school dictionary, one lamp and four window curtains, the property of School District No. 56, alleged to have been feloniously taken, stolen and carried away by Daniel Dodge, are concealed in his house; you are therefore commanded forthwith to search said house, and bring said property before me, at my office, in said township; and then and there return this writ.
“ Witness my hand, at my office, in Fairfax township, in said county, this 25th day of March, 1880.
S. J. Watson,
A Justice of the Peace.”
On March 29, 1880, the constable, B. G. Wilson, went to the plaintiff’s house with the warrant, and searched the same, taking with him the defendant and Culbertson, to identify the
The defendant answered, denying all the allegations of the plaintiff’s petition, except such as he admitted in his answer, and setting forth in substance, but briefly, the facts above stated, in justification of his conduct. On April 15, 1881, the case was tried before the court and a jury, and the above facts with others were shown to the court and jury. The plaintiff testified that he had never had any of the stolen property in his possession, except the dictionary ; and that he had ordered one of his boys to take that to the school house, at the time that the school was commenced in October, 1879; and the boy testified that he had so taken it, and that he had laid it on the teacher’s desk. The teacher however testified with reference to this matter as follows: “There was no dictionary in the school house of any kind. Mr. Dodge’s boy never brought any such book to the school house. He brought a few old books, but no dictionary.” And no one, except the plaintiff’s two boys, ever saw the dictionary at the school house after it was first "missing; and one witness,.at least, testifies that he saw the dictionary at the plaintiff’s house after the search warrant had been issued. The plaintiff owned a cedar water bucket, similar to the one belonging to the school district. He also owned window curtains similar to the ones that belonged to the school district; and also owned lamps; but according to the evidence, there were some differences between the several articles of the plaintiff’s property and those belonging to the school district. The plaintiff and his two boys testified that they owned but one cedar water bucket; and there were several witnesses who testified that they had seen at one time, two cedar water buckets at the plaintiff’s house, one of which they believed belonged to the school district. The plaintiff’s window curtains seem to have been blue, or a bluish green, or blue on one side and green on the other; while the window curtains belonging to the school
All this had been communicated to the defendant before he commenced the supposed criminal prosecution, and, as before stated, the defendant himself believed that he had seen the water bucket belonging to the school district, at the plaintiff’s house. The defendant unquestionably believed at the time he made his affidavit for the search warrant, just what he stated in the affidavit; and on the trial of this case he testified among other things, as follows: “I thought that the facts set forth in the affidavit were necessary to procure the search warrant. I believed the facts therein stated to be true at the time, and I believe so yet.” Undoubtedly the defendant believed so; and he had very good reasons for his belief; and there was nothing introduced, in the evidence to show that the defendant should have entertained any other belief. The stolen property has never yet been found.
Upon these facts, we think the defendant had probable •cause for commencing the prosecution that he did. If the plaintiff had shown that the property was not stolen, or that it was stolen by someone else than by the plaintiff, and that the defendant at the time he procured the search warrant had known these facts; or if the plaintiff had shown that the defendant knew that the property was somewhere else than at the plaintiff’s' house, at the time that the defendant procured the search warrant; or if the plaintiff had shown
It is for the interest of public justice that every man may give information freely in a judicial proceeding, without fear of the ultimate consequences. This is necessary for the successful suppression of vice and crime; and it is often necessary for the purpose of protecting rights and obtaining justice in civil actions. It is claimed, however, by the plaintiff in this case, that it was not necessary that the defendant should state in his affidavit for the search warrant that the plaintiff stole the missing property. Now this is true; it was not absolutely necessary that the defendant should have stated that the plaintiff, or that anyone else, stole the property. All that was really necessary in order to obtain the search warrant was, that the defendant should state upon oath that the property had been
' It is not claimed in this case that the missing goods were embezzled; but all the parties agree that they were stolen.
The judgment of the court below will be reversed, and the cause remanded for a new trial.