50 Ill. 337 | Ill. | 1869
delivered the opinion of the Court:
W e have confined our attention chiefly to the three errors first assigned by appellants, which are as follows ; Excluding legal and proper evidence offered by appellants, and in sustaining objections to legal and proper questions put by appellants; refusing to permit appellants to propound to witnesses at the trial, legal and proper questions, and in refusing to permit proper questions put to witnesses by appellants to be answered ; permitting appellee to put illegal and improper questions to the witnesses, and to give illegal evidence to the jm7-
We have looked carefully into the testimony found in the bill of exceptions, and are satisfied that much of the evidence offered by appellants and excluded, should have been received.
The action was case, for a malicious arrest, the plaintiff having been arrested by defendants in an action brought by them against him and others for enticing away their apprentices, which action was dismissed by them, no trial having been had.
The facts briefly are, that appellants were extensively engaged in the iron foundry business at Quincy, employing a very large capital, and doing a heavy and profitable business under the “ free” system, as distinguished from the antagonist system of the “ moulders’ union.” They had at one time in 1864, carried on their establishment under the rules and control of this union, but changed it to a free foundry, and adopted a system of apprenticeship and journeyman work prohibited under the system of the moulders’ union. On this change by appellants, the union moulders employed by them quit work, and in June, 1866, all the apprentices of appellants quit their employment.
Appellee being considered, with others, an active instigator of the “ strike” by their apprentices, and who belonged to the moulders’ union, was prosecuted for his alleged unlawful conduct in enticing away their apprentices, and bail required in a large sum of money, which resulted in his short imprisonment.
• It is in vain to say, when the evidence is considered, that appellee was not actively hostile to appellants’ establishment. Many witnesses establish this fact.
That the moulders’ union were directly implicated in the attempt to break up appellants’ free establishment, is abundantly proved, and that appellee was an active participant therein appears to be well established by the testimony.
This design existing with the moulders’ union, it became very important to show that the witnesses for the plaintiff became members of that union after they left appellants, but when the question was asked, on cross-examination, where great latitude is allowed, of a witness if he had joined the moulders’ union, the court would not permit the question to be put. In this the court erred, for although it did not, technically, pertain to the matter of the direct examination of the witness, still it was admissible to show the influences under which the witness was placed by joining the moulders’ union.
All the questions put to Smeiderkamp, on cross-examination, and rejected by the court, should, on the above principle, have been allowed, and so with Mailing and Carter. The refusal of the court to permit them to answer the questions put on cross-examination was erroneous.
The question put to defendants’ witness, Pfeiffer, by the defendants, as to what he learned was the object of the meeting at the engine house, was so applicable to the whole matter in controversy, the witness having stated appellee was at that meeting, that it is difficult to perceive on what ground it was excluded, and so of the question which immediately followed it, and excluded, “ Was, or was not, this meeting held at the place of meeting of the moulders’ union ?” The objection was not, that the question was leading, but that it was an improper question in itself. We think, as a conspiracy was sought to be proved by appellants by members of this union against them, these questions were very proper, as tending in that direction. So the question put to Lopaz, of the same nature, should have been answered by him, for the reasons given.
This question put to Emery, a witness for defendants, “ State whether there was any complaint among the apprentices before the strike,” in the view we take of the case, was pertinent, whether appellee was connected with the “ complaints” or not. An effort was made by defendants to connect him with the strike, and defendants should have been allowed to show there was really no complaint by the apprentices. The inference would then be a fair one, that they struck by reason of the officious intermeddling and unwarranted conduct of plaintiff and others. All the questions propounded to this witness, which were disallowed by the court, should have been allowed, and the same may be said of those put to McElfrish, who was a member of the moulders’ union, and stood in the position of an unwilling witness, with whom great latitude of examination is allowed.
When the nature of the action is considered, the onus of proof of probable cause being on the appellants, justice requires they should not be closely circumscribed in their efforts to that end. It is the duty of every citizen, knowing a criminal offense has been committed, to give notice thereof to the authorities, and if a prosecution is instituted and fails, he ought to be allowed to go into an examination of all the facts and circumstances attending the case, in order to his own justification. Were not this so, but few persons would be found willing to incur the risk of a prosecution against a suspected malefactor, an action for a malicious prosecution to ensue upon his acquittal.
But we do not intend to go into any examination of the proof in this case, as going to show probable cause, but only to state a safe principle, that in such actions great latitude of inquiry is, and should be, indulged.
Another error was refusing to permit Mr. Bushnell, one of appellants’ counsel, who had stated that they had consulted him and stated the facts of the case, to answer what opinion he gave them as to their right of action and arrest of appellee. The court would only allow him to be asked if he advised bringing the suit by appellants.
How it is very apparent this latter question was an impertinent one, so far as Mr. Bushnell, or any other high-minded lawyer, might be concerned, for such lawyers do not advise clients to bring suits. They give them the law on the facts stated. We question very much if Mr. Bushnell ever advised a client to bring an action. The appellants had a right to have the specific question asked of Mr. Bushnell, answered by him— did he advise appellants that they had a right of action, not, did he advise the action brought.
Bringing an action after taking competent legal advice that a right of action exists, will, in most cases, relieve it from the charge of having been brought maliciously and without probable cause. Appellants were entitled to have the precise question put and answered by Mr. Bushnell.
For these errors, the judgment of the circuit court is reversed and the cause remanded.
Judgment reversed.