74 Minn. 139 | Minn. | 1898
This is an action for malicious prosecution of a civil action against the plaintiff by the defendant.' Verdict for the plaintiff in the sum of $1,500, and the defendant appealed from an order denying its motion for a new trial.
I. The action was commenced in the district court of Polk county, but was removed to Hennepin county on demand and affidavit on behalf of the defendant that the only county in the state wherein it had an officer or agent or place of business was the latter county. Thereupon the plaintiff made a motion that the action be returned to the district court of the county of Polk, on the ground that it had been improperly removed. The court made its order so remanding it. At the commencement of the trial herein the defendant objected to proceeding to trial in Polk county, and moved the court to remand the case to Hennepin county. The objection and motion were overruled. These rulings are assigned as error.
The defendant is a foreign insurance corporation, and before the commencement of this action had duly filed a power of attorney authorizing service of process to be made upon the insurance commissioner of the state as personal service upon it, and had received his official certificate authorizing it to do business as an insurance company within the state. Therefore the defendant claims that by virtue of the statute it is entitled to all the rights and privileges of a domestic corporation, which can be sued only in a county where it has an office, agent or place for the transaction of business.
The provisions of the statute relating to this question, so far as here material, are in legal effect the following: A foreign corporation may be sued in any county in the state which the plaintiff shall
These several provisions of the statute are not inconsistent, and section 5185 is not repealed, by implication or otherwise, by the other sections we have referred to, although the latter were enacted since the former. Section 3167 authorizes foreign corporations to become domestic corporations only for the purpose of transacting their business, and section 3425 confers upon them the rights and privileges of domestic corporations, except as otherwise provided by law. It was at the time this last section was enacted, and still is, otherwise provided by law with respect to the place of trial of actions against foreign corporations of the character of the defendant. We therefore hold that a foreign insurance corporation, although it has complied with all of the provisions and conditions of the statute as to its right to do business in this state, may be sued in any county in the state which the plaintiff designates in his complaint.
2. The conclusion we have reached in this case renders it unnecessary to consider any other of the assignments of error, except the one to the effect that the verdict was not justified by the evidence. It is settled by the decisions of this court that for the prosecution of a- civil action maliciously and without probable cause the party injured may maintain an action for damages, although there was no interference with his person or property. McPherson v. Runyon, 41 Minn. 524, 43 N. W. 392; O’Neill v. Johnson, 53 Minn. 439, 55 N. W. 601. However, the want of probable cause must be very palpable. A greater latitude in the doctrine of reasonable
Proof of want of probable cause for prosecuting the original action is absolutely essential to the plaintiff’s right of recovery, and, while malice may be inferred from proof of want of probable cause, yet the converse of this proposition is not true. Want of probable cause cannot be inferred from proof of malice alone. Probable cause, as applicable to the prosecution of a civil action, is such reason, supported by facts and circumstances, as will warrant a cautious man in the belief that his action, and the means taken in prosecuting it, are legally just and proper. What facts and whether particular facts constitute probable cause is a question exclusively for the court. What facts exist where there is a dispute as to them is a question for the jury. Therefore the question of probable cause will be reviewed on appeal as a legal conclusion, rather than as a mere question of fact. Burton v. St. Paul, M. & M. Ry. Co., 33 Minn. 189, 22 N. W. 300; Moore v. Northern Pac. R. Co., 37 Minn. 147, 33 N. W. 334; Gilbertson v. Fuller, 40 Minn. 413, 42 N. W. 203.
If the evidence in this case is examined in the light of the principles we have suggested, it will be found that it is not sufficient to sustain a finding to the effect that the defendant instituted the civil action in question without probable cause. There is but little controversy as to the facts established by the evidence on the trial. The defendant is a guaranty insurance company. The action it is charged with having maliciously prosecuted against the plaintiff was before this court on appeal. See Fidelity & Casualty Co. v.
During the time covered by the bond and the renewal thereof there was a shortage in the plaintiff’s account of over 900 bushels, of wheat; that is, the amount received into the elevator was that number of bushels more than was delivered to the elevator company. It was clearly established on the trial of this action that the deficit was not due to any fraud or dishonesty on the part of the plaintiff, but to a failure to take sufficient dockage, or some other cause. The elevator company made a claim for this shortage on the defendant, by virtue of its guaranty; and the defendant duly investigated the claim, conceded that it was liable, and paid the-elevator company $665.90 in settlement thereof. Afterwards it took an assignment of the claim, and commenced September-28,, 1892, an action thereon against the plaintiff. This action was commenced on the advice of counsel, after a full statement of the facts. It was, however, dismissed, and another action brought, on like advice by counsel, May 18,1893, on the plaintiff’s agreement to indemnify the defendant. A motion was made on behalf of the defendant in that action (the plaintiff in this action) to set aside the-service of the summons on the ground of irregularity; and thereupon the action was dismissed by the defendant herein, and the-action was again commenced June 28,1893. A demurrer was interposed to the complaint in this third action, which was sustained in
The question then is, did the defendant bring the third action without probable cause? It appears from the undisputed evidence that the first action was dismissed and the second one commenced on the advice of counsel that the defendant’s proper and practicable remedy was by an action on the indemnity agreement by the plaintiff, and not by an action as the assignee .of the supposed claim of the elevator company against the plaintiff, as the defendant was at first advised. The reason for dismissing the second action we have stated. The third was commenced simply to correct an irregularity of the proceedings in the second one, of which plaintiff was seeking to take advantage. The undisputed evidence shows that the third action was dismissed on account of the supposed insolvency of the plaintiff, and the difficulty of making the necessary proofs, for the reason that the reports of the wheat tickets of the plaintiff and the books of the elevator company had been destroyed without defendant’s knowledge or consent.
Upon the whole evidence, we are of the opinion that it is not sufficient to sustain a finding that the defendant commenced the action in question without probable cause. It is probably true that mistakes were made on the part of defendant which prolonged the litigation, and resulted in annoyance and loss to the plaintiff. However, it must be remembered that the law in regard to guaranty insurance and the rights of the respective parties to the bond and indemnity agreement was then unsettled. Losses by judicial proceedings belong to the common incidents of life, and if, in a given case, there is probable cause for instituting them, the party injured thereby can have no redress, except such costs as the law
Order reversed and a new trial granted.