79 Neb. 206 | Neb. | 1907
Lead Opinion
On June 3, 1903, the defendant Reavis, who then held the offices of marshal and street commissioner of the village of Battle Creek in this state, with the assistance or encouragement, as it is alleged, of the defendants Miller and Kilbourn, and without warrant or process, seized the person of the plaintiff and cast him into the village jail, detaining him there for the space of two hours. At the end of that time Reavis hauled the plaintiff and another before a justice of the peace of the county, before whom he filed a written 'complaint of which the following is a copy ; “The State of Nebraska, Madison County, ss.: The complaint of W. F. Reavis, village marshal of said county, made before me, E. G. Dennis, a justice of the peace in and for said county, who, being duly sworn, deposes and says that on the 3d day of June, 1903, in the county of Madison state of Nebraska, Church Boyer and Munsey Hackley
The arrest was without process, and in his motion be
In addition to the foregoing, it does not seem that the
By the Court: For the reasons stated in the foregoing-opinion, it is ordered that the judgment of the district court be
Affirmed.
Rehearing
This case is before us on a rehearing. By our former opinion, ante, p. 206, the judgment of the district court in favor of the defendants was affirmed, for the reason that the plaintiff’s action was one for damages for trespass in the nature of assault and battery committed by false imprisonment, and was barred by the statute of limitations when it was commenced. We think the rule of laAv announced in the opinion is sound, but an examination of the record convinces us that it does not correctly dispose of one of the questions presented thereby. The plaintiff’s amended petition contained two causes of action; one for malicious prosecution, and the other for a trespass in the nature of an assault and battery committed by false imprisonment. The record discloses that it was made to appear that plaintiff was designated in his petition, and his action was brought in the name of, “Munsey Hackley,” instead of “Munsey Hackler,” which is his time name. The defendant therefore objected to the plaintiff’s evidence, and the objection was sustained, to which an exception was noted. Plaintiff thereupon made the following request: “The plaintiff, Munsey Hackler, asks leave of court to change the words ‘Munsey Hackley’ to the
The plaintiff introduced a record of the proceedings in the justice court, which were the basis of the action for malicious prosecution, to Avhich defendants objected for the reason that it appeared that the plaintiff’s cause of action was barred by the statute of limitations: The court overruled the objection, and properly so in our opinion, because the first cause of action set forth in the plaintiffs petition AAras one 'for malicious prosecution; and, although the complaint filed before the justice of the peace failed to state facts sufficient to charge the plaintiff with the commission of a crime, and no judgment which could have been enforced was ever pronounced against him, yet, in
After the ruling above mentioned the trial proceeded on the plaintiff’s theory of the case. The jury were instructed upon that theory, and yet they returned a verdict for the defendants. A careful reading of the bill of exceptions convinces us that the evidence fully sustains, the verdict.
Plaintiff contends that the judgment should be reversed for the reason that defendants could not justify their actions witjiout interposing a plea of that nature. Strictly speaking there is no such thing as a plea of justification in an action for malicious prosecution. It is true the defendant may justify in an action for false imprisonment, but that cause of action was barred by the statute of limitations when the suit Avas commenced. So it appears that no justification was attempted by the defendants in the sense in which that term is ordinarily used. The plaintiff
Complaint is made of instructions 10 and 11, given by
It is contended that the court erred in giving paragraph No. 12 of his instructions, because it conflicts with the instructions given at the plaintiff’s request. The instruction reads as follows: “Malice in law means an act done wrongfully and wilfully without reasonable or probable cause, and not necessarily an act done from ill feeling or spite, or a desire to injure -another. It is enough if defendant be actuated by improper or sinister motives.” This instruction seems to support the plaintiff’s theory of the case, and the conflict, if any, between it and those given at the request of the plaintiff is so slight that the jury could not have been confused or misled thereby. Again, by instruction No. 13 the jury were informed that, if the purpose of the arrest was anything else than to vindicate the law and punish crime, then they might infer that the defendant had a malicious motive in causing the same. In short, the instructions seem to substantially coincide with the plaintiff’s view of the law of the case.
Counsel complains of instructions numbered 1 to 3, inclusive, given at the request-of the defendants. As we have heretofore stated, it seems clear that the case was not decided by the jury on the theory of justification. In fact the record of the prosecution was not sufficient to constitute a justification, and the only thing left for the jury to determine was whether or not the prosecution was malicious and without probable cause. This being the case, the judgment should not be reversed because of the instructions complained of. In our view of the case, no other verdict could have been sustained than the one returned by the jury, and therefore the giving of these instructions, if error, was without prejudice.
For the foregoing reasons, our former judgment, as explained and modified herein, is adhered to.
Affirmed.