222 Wis. 501 | Wis. | 1936
This is an action for malicious prosecution. The plaintiff contends that the court erred, (1) in permitting the defendant’s counsel to re-examine the defendant, called as an adverse witness, immediately following the conclusion of her examination by plaintiff’s counsel, (2) in granting a nonsuit on the merits, and (3) in denying the plaintiff a jury trial.
In support of the first assignment of error, the plaintiff cites the case of O’Day v. Meyers, 147 Wis. 549, 133 N. W. 605. The law laid down in that case was modified in Guse v. Power & Mining Machinery Co. 151 Wis. 400, 139 N. W. 195. In that case it was said:
“Under such circumstances the defendant has a right to re-examine such witness immediately after the examination by plaintiff’s counsel as to all matters tending to explain or qualify the testimony already given, but not as to new matters not brought out by plaintiff’s counsel and constituting*503 part of the defendant’s defense. . . . So far as O’Day v. Meyers, 147 Wis. 549, 133 N. W. 605, may be understood to the contrary, it must be deemed modified by this decision.”
That rule was recently approved in Leslie v. Knudson, 205 Wis. 517, 521, 238 N. W. 397. We have read the examination of the defendant, called adversely for cross-examination, and the subsequent re-examination conducted immediately thereafter by her counsel. Numerous objections were made by plaintiff’s counsel to the testimony sought to be adduced on the ground that it was hearsay or was too remote to have any relevancy to the issues litigated. Once or twice plaintiff’s counsel objected to a question on the ground that it sought to adduce new, defensive matter and was not proper cross-examination. The record reveals that the court was familiar with the rule approved in the Guse and Leslie Cases. In our opinion the court did not permit the defendant’s counsel to go beyond the reasonable limits of the rule in re-examining his client. It is our opinion that the court did not err in the respect asserted.
The plaintiff next contends that the court erred, (1) in finding that the defendant had probable cause for making the complaint, (2) in concluding that the proceeding upon such complaint was a civil action of such nature that no action for malicious prosecution could be based thereon, and (3) in concluding that the plaintiff failed to establish a want of probable cause in making the complaint. In our view it is unnecessary presently to determine whether an action for malicious prosecution may be grounded upon a complaint made under a city ordinance. Such actions are civil actions. Oshkosh v. Schwartz, 55 Wis. 483, 487, 13 N. W. 552; Milwaukee v. Johnson, 192 Wis. 585, 589, 213 N. W. 335; Neenah v. Krueger, 206 Wis. 473, 240 N. W. 402. Under certain circumstances, an action for malicious prosecution may be grounded upon a civil action. Luby v. Bennett, 111 Wis. 613, 87 N. W. 804.
“It is elementary law that the action for malicious prosecution can be maintained only when the defendant was actuated by malice and acted without probable cause to believe the accused guilty.” (Citing numerous prior Wisconsin cases.)
In Eggett v. Allen, 119 Wis. 625, 96 N. W. 803, and Schwartz v. Schwartz, 206 Wis. 420, 240 N. W. 177, probable cause was thus defined:
“Probable cause has been defined to be such a -state of facts in the mind of the prosecutor as would lead a man of ordinary caution and prudence to believe or entertain an honest and strong suspicion that the person arrested is guilty.”
It is generally held that whether a defendant acted upon “probable cause” or “without probable cause” is a mixed question of law and fact, and that if the facts are in dispute the determination of the facts under proper instruction of the court must be determined by the jury, but if the facts are undisputed the court should determine as a question of law' whether the defendant instituted the particular action with or without probable cause. As was said by Mr. Justice Marshall in King v. Apple River Power Co. 131 Wis. 575, 111 N. W. 668:
“Whether there was probable cause in a case of this sort is solely a question of law for the court where the facts are undisputed. The province of the jury is to deal with the*505 controversy as to facts where there is a dispute in that respect, but such controversy being settled the ultimate question is for the court.”
In Leslie v. Knudson, supra, it was said:
“The trial court took the undoubtedly correct view that where the facts are undisputed, probable cause [in a malicious prosecution action] is a question of law for the court.”
See also 18 R. C. L. p. 58, § 39. It is there stated:
“The general rule of the common law, sustained by the overwhelming weight of authority, both in England and America, is that what facts, and whether particular facts, constitute probable cause is a question of law, which the judge must decide upon the facts found to exist in the particular case, and which it is error for him to submit to the decision of the jury. While the jury are to find what facts do exist, where the evidence is conflicting, the question of whether upon the facts as proved and found probable cause has or has not been made out is a question which the court must decide. For this reason probable cause has often been said to be a ‘mixed question of law and fact.’ If there is no dispute upon the facts, whether or not there was probable cause for the institution of the former proceeding is a question to be decided by the court alone.” See also Wigmore, Evidence (2d ed.), p. 560, § 2553.
A careful reading of the testimony adduced reveals that there was no dispute as to- the facts having a bearing upon the question of probable cause. So, under the established law, it was for the court to determine whether the defendant acted with or without probable cause.
The only question which we may consider is whether the court erred in finding and in concluding that the defendant acted upon probable cause. The undisputed facts are as follows: The defendant lives with her husband and children near to but within the southerly limits of the city of Madison. Arnold De Vries is an incompetent who resides with his wife, Mary De Vries, the plaintiff, who is his guardian.
The plaintiff’s third contention is that the court, in granting the defendant’s motion for a compulsory nonsuit, denied her the right to a trial by jury. That contention, in our opinion, is without merit. As has been stated, the facts were
By the Court. — Judgment affirmed.