Jackson v. Linnington, 47 Kan. 396

Jackson v. Linnington

47 Kan. 396 | Kan. | 1891

The opinion of the court was delivered by

Johnston, J.:

The evidence in the case is not preserved, but the record contains a short statement of what the evidence offered by the parties tended to show, and that is sufficient to raise the questions which the plaintiff desires to present upon the testimony and findings.. Complaint is first made of the refusal of instructions requested, as well as the giving of instructions which were objected to. While a general complaint is made, the plaintiff fails to indicate what the specific objections are, or to point out wherein the rulings are deemed by him to be erroneous.

The charge given appears to embody all material and correct instructions that were requested, and to fairly present the case to the jury. One request which raises the same question as is raised upon the findings was, that if the jury found that the purpose of the defendant in bringing the prosecution was to prevent the plaintiff from building a house, then such a prosecution was without probable cause. This instruction was modified by the court. After defining the offense of malicious trespass, and what facts would be sufficient to constitute probable cause for the institution of a prosecution therefor,, the court charged that, “if said prosecution was instituted merely to prevent the plaintiff herein from erecting a building on the lot in controversy, such fact would not constitute probable cause for commencing the prosecution.” This was a *400proper modification. If the sole purpose of the prosecution was to prevent the erection of a building, it would not have been justified. The construction of the house, however, appears to have involved the digging and preparation of a foundation, and hence the defendant may have desired not only to prevent the erection of a building, but also intended to prosecute and prevent the offense which had been committed, and the further commission of the same. Evidence was given tending to show that the defendant notified the plaintiff that the lot upon which he was digging and from which he was removing clay and dirt belonged to him, and warned him against further trespassing there; but, notwithstanding this warning, he refused to quit work, and further continued to trespass upon the defendant’s property. There was also testimony that the defendant before he commenced the prosecution counseled with attorneys, and after presenting them with a full statement of all the facts, they advised him that the plaintiff was guilty of the offense and that the prosecution could be maintained. Acting on their advice, he, in good faith and without malice, believing the action could be maintained, and that there was probable cause for making the charge, began the prosecution. And if there was probable cause for commencing the prosecution, and he, acting upon the advice of attorneys, in good faith believed there was probable cause, and if in good faith and without malice he caused the arrest and prosecution of the defendant, the fact that he may also have desired to prevent the construction of the building upon the lot would not entitle the plaintiff to recover. On the other hand, if his sole purpose was to prevent the erection of a building, or the mere enforcement of a civil right, then the arrest and prosecution would be without probable cause, for which the defendant would be liable.

In one of the findings returned by the jury, it is stated that the object of the defendant was to prevent the plaintiff from erecting a building on his land; and the plaintiff contends that this finding entitled the plaintiff to a recovery. The finding, however, when construed in connection with the others *401returned by the jury, shows that this was not the only object of the defendant in beginning the prosecution, but that he acted in good faith and without malice in the institution of the prosecution. It is found that he had reasonable grounds to believe that the plaintiff had committed the offense charged; that he acted upon the advice of his attorneys, after a full consultation and a statement of all the material facts, and that he relied upon the advice of the attorneys in bringing the action; and also that there was probable cause for the commencement of the prosecution. If the findings will fairly admit of an interpretation which will make them harmonious with each other and with the general verdict, that interpretation should be given, rather than one which will overturn and destroy the findings and verdict. (Railroad Co. v. Ritz, 33 Kas. 404; U. P. Rly. Co. v. Fray, 43 id. 750.) The findings may fairly be construed to show that the defendant instituted the prosecution in good faith, to punish the plaintiff for the offense charged against him. Although he desired to prevent the building of a house, he also desired and intended to procure the punishment of a public offense, and to prevent the further commission of the same. The digging up of the clay and dirt, and the removal of the same from the defendant’s land without consent or right, constituted probable cause, and it also constituted a part of the construction of the house. We think the findings may be fairly harmonized with each other and with the general verdict.

The judgment of the district court will be affirmed.

All the Justices concurring.