114 Wis. 24 | Wis. | 1902
Error is assigned because thq court re^ fused to require tbe plaintiff to give security for costs. The statute provides:
“Any court of record in wbicb a civil action may be pending may, in all cases where it shall appear reasonable and proper, require the plaintiff to give sufficient security for all such costs as may be awarded against him therein.” Sec. 2942, Stats. 1898.
Upon the showing made, the court might properly have granted the defendant’s motion, and required the plaintiff to give security for costs. But the motion was under the statute, as repeatedly construed by this court, addressed to the sound discretion of the trial court, and we cannot say that there was an abuse of such discretion. Heeron v. Beckwith, 1 Wis. 17; Joint School Dist. v. Kemen, 72 Wis. 179, 39 N. W. 131. Besides, the order is not appealable. Sec. 3069, Stats. 1898.
2. It is claimed that the verdict is against the weight of evidence. But that question was for the jury to determine. We cannot say that there is no evidence to sustain the verdict, — much less, that it is contrary to the evidence.
3. Error is assigned for the exclusion of testimony. The plaintiff, after testifying on his direct examination that when he was arrested he was put in the city lockup, and on his cross-examination that he had lived in Waupun for two years, and before that a year or so at Beaver Dam, and before that a year and a half at Columbus, was asked this question: “A part of that time you were in jail, were you not?” Error is assigned because that question was excluded. We find no error in such ruling. It did not appear, and he was not asked, whether he had ever been convicted of any criminal offense. The statute authorized the proof of such conviction to affect the plaintiff’s “credibility, either by the record or by his own cross-examination.” See. 4073, Stats. 1898. The mere fact of being in jail would be without significance. Nor can
4. Error is assigned because the court refused to submit to the jury this question: “Was there a general rumor in Waupun, at the time the plaintiff was arrested on the charge of removing or concealing chattel-mortgaged property, that he was guilty thereof ?” In support of such contention, counsel cite the statute which requires the trial court to “direct the jury to find a special verdict ... in the form of questions, in writing, relating only to material issues of fact, and admitting a direct answer, to which the jury shall make answer in writing.” Stats. 1898, sec. 2858. That statute has frequently been construed to “limit such questions to such facts as are controverted and put in issue by the pleadings, or, at most, to such as might properly have been put in issue by the pleadings.” Heddles v. C. & N. W. R. Co. 74 Wis. 258, 42 N. W. 237, and cases there cited. But the form of the verdict in all such cases is very much in the discretion of the trial court. Id.; Lee v. C., St. R., M. & O. R. Co. 101 Wis. 362, 77 N. W. 714. The important issue on the trial was whether the defendant procured the arrest of the plaintiff maliciously and without reasonable or probable cause to believe he was guilty of the offense, under the statute, of which he was charged. Sec. 4-467, Stats. 1898. The fact whether
“If you find from the evidence that there was a general rumor in the city of Waupim, known to the defendant before the commission of said alleged offense by the defendant, then .you may take into consideration such fact, with the other evidence in the case, on the question of probable cause, and on the question of the defendant’s acting in good faith and without malice.”
The question of general rumor was thus submitted to, and necessarily considered by, the jury, in answering that question.
5. This court has many times declared that such special verdict was not designed to elicit from the jury a mere abstract of the evidence. Eberhardt v. Sanger, 51 Wis. 72, 76, 8 N. W. 111; Heddles v. C. & N. W. R. Co. 74 Wis. 258, 42 N. W. 237; Ohlweiler v. Lohmann, 88 Wis. 78, 59 N. W. 678; McKeon v. C., M. & St. P. R. Co. 94 Wis. 486, 69 N. W. 175; Goesel v. Davis, 100 Wis. 678, 76 N. W. 768. And yet a number of the questions submitted related merely to such evidentiary facts, and hence were erroneous.
6. Eor many years this court has sought to limit questions submitted in special verdicts to such facts, as far as practicable, as are controverted and put in issue by the pleadings. A quarter of a century ago, Chief Justice Ryan tersely stated that:
“The statute providing for special verdicts is an excellent •one, tending to dispel the occasional darkness visible of general verdicts. But special verdicts are worse than useless if courts do not submit for them single, direct, and plain qtiestions, and insist upon positive, direct, and intelligible answers. Indirect, evasive, uncertain and unmeaning an*32 swers should never be received. And when none other can be drawn from a jury, the verdict sbonld not stand for a moment.” Carroll v. Bohan, 43 Wis. 221.
That language is just as potential now as when first announced. Had it been faithfully followed, many of the cases which have come to this court would have terminated in the trial court. It has been heeded by some trial courts, but widely departed from in others, though frequently enjoined by this court, either in the same or similar language, or language of a like import. Eberhardt v. Sanger, 51 Wis. 74, 8 N. W. 111; Murray v. Abbot, 61 Wis. 198, 203, 20 N. W. 910; Heddles v. C. & N. W. R. Co. 74 Wis. 257, 258, 42 N. W. 237; Montreal River L. Co. v. Mihills, 80 Wis. 558, 50 N. W. 507; Farley v. C., M. & St. P. R. Co. 89 Wis 206, 208, 61 H. W. 769; McGowan v. C. & N. W. R. Co. 91 Wis. 147, 158, 64 N. W. 891; Klochinsky v. Shores L. Co. 93 Wis. 423, 424, 67 N. W. 934; Louis F. Fromer & Co. v. Stanley, 95 Wis. 59, 69 N. W. 820; Baxter v. C. & N. W. R. Co. 104 Wis. 317, 80 N. W. 644; Peake v. Superior, 106 Wis. 407, 408, 82 N. W. 306; Sladky v. Marinette L. Co. 107 Wis. 257, 83 N. W. 514; Mauch v. Hartford, 112 Wis. 40, 87 N. W. 816. As stated in a recent case:
“Questions for a special verdict should be plain, single, and each so worded as to cover some fact in issue, or some fact properly issuable under the pleadings, and requisite to a determination of the controversy between the parties.” Goesel v. Davis, 100 Wis. 679, 76 N. W. 768.
In a still more recent case it is said:
“The object of a special verdict is solely to obtain a decision of issues of fact raised by the pleadings, not to decide disputes between witnesses as to minor facts, even if such minor facts are essential to and establish, by inference or otherwise, the main fact.” Baxter v. C. & N. W. R. Co. 104 Wis. 313, 80 N. W. 644.
These numerous cases are cited, not because there is any difficulty in comprehending the statutory rule so- often ap
“Both malice and the absence of probable cause must exist concurrently to make a case of malicious prosecution. Absence of probable cause is a complete defense. ... If you find from the evidence that the defendant had probable cause for believing, and did believe, that the plaintiff had committed the criminal offense referred to, then he was not precluded from' making complaint for the same before a justice of the peace, even if you should find from the evidence that he had malice against the plaintiff.”
This court has held:
“An action for malicious prosecution cannot be maintained, even though express malice be shown, if the defendant had good reason to believe, and did believe, when he made complaint, that the plaintiff had committed the offense charged.” Murphy v. Martin, 58 Wis. 276, 16 N. W. 603.
To the same effect, Strehlow v. Pettit, 96 Wis. 22, 27, 71 N. W. 102; 2 Greenl. Ev. (15th ed.), §§ 453, 454. It is there said by Mr. Greenleaf that want of probable cause “is independent of malicious motive, and cannot be inferred, as a necessary consequence, from any degree of malice which may be shown.”
The court improperly refused to charge the jury that the burden of proof to show that there was no probable cause was upon the plaintiff. This was error. Messman v. Ihlenfeldt, 89 Wis. 591, 62 N. W. 522.
7. The answer to the first question submitted was directed
“A want of probable cause is not shown by the acquittal of the accused. If such were the rule, but few, if any, would dare make an effort to enforce the criminal laws of a state. To do so would involve the prosecuting witness, wherever the prosecution failed, in vexatious litigation and loss, and none could be expected to incur such hazards. Prosecuting witnesses must be protected where they act in good faith on facts and circumstances which are such as induce a belief of guilt in the mind of a reasonable person. This has always been the rule of the law. The issue for the jury or the court to try is not the guilt of the plaintiff. If the defendant act in good faith on evidence, whether true or false, which is sufficient to create a reasonable belief that the accused is guilty -of the offense, he is protected.” Sec. 20, p. 294.
Thus it is held in Connecticut that “a discharge of the plaintiff is essential to his recovery, but it is not proof of want of probable cause, nor of malice.” Thompson v. Beacon Valley R. Co. 56 Conn. 493, 16 Atl. 554. To the same effect, Anderson v. Friend, 85 Ill. 135; Boeger v. Langenberg, 97 Mo. 390, 11 S. W. 223. In this last case it was held that “an •acquittal does not tend to establish want of probable cause in moving the prosecution.” So it has been held in Iowa that “an acquittal upon the final trial of criminal proceedings raises no presumption of a want of probable cause in an action for malicious prosecution.” Philpot v. Lucas, 101 Iowa, 478, 70 N. W. 625.
. In the light of these authorities, it is very obvious that the court should have charged the jury, as requested, that “the acquittal of the plaintiff in such criminal action is no evidence of want of probable cause.” In the section of Green-
8. By splitting up tbe principal issue made by tbe pleadings tbe charge of tbe court was much less helpful, if not misleading and confusing. Tbus in charging tbe jury upon tbe second question submitted, wbicb related wholly to tbe defendant’s, motive and malice, tbe court charged tbe jury on' tbe want of probable cause. Tbe third question related to'malice on tbe part of tbe defendant, and tbe fourth and fifth related to want of probable cause at different stages of tbe proceedings, but in charging tbe jury they were all grouped together; and tbe charge thereon related to want of probable cause and evidence of good faith, and referred back to tbe instructions wbicb bad been given upon malice, as not being necessary to repeat. So, in charging tbe jury, tbe sixth, seventh, and eighth questions submitted, all relating to tbe advice of counsel, were grouped together; tbe court again going over both malice and want of probable cause, a portion of wbicb has been quoted above. Tbe ninth question was of a kindred nature, but was submitted without instruction. Tbe
By the Court. — The judgment of the circuit court is reversed, and the cause is remanded for a new'trial. The appeal from the order refusing security for costs is dismissed.