156 Minn. 446 | Minn. | 1923
Appeal by defendant from an order denying a motion for judgment notwithstanding the verdict or for a new trial, after verdict for plaintiff in an action for damages for the alleged malicious prosecution of a civil action. The suit complained of was to recover damages from defendant therein (¡plaintiff and respondent here), because, as the appellant charged, she had been guilty of maliciously sowing thistles in his field. That action was dismissed at the close of plaintiff’s evidence. Thereupon, this action was commenced, resulting as already indicated.
There are certain assignments of error concerning rulings upon evidence which, in view of our disposition of the case, need not be considered.
The following appears from uncontradicted evidence: Upon appellant’s return home one afternoon, he was informed by his son that the latter had seen respondent walking along the road adjoining appellant’s field; that she had left the road; had gone some distance into the field, and there had swung her arms as though “sowing something.” As soon as his team was stabled, appellant in company with his son investigated and found foot prints leading from the road into the field (there was snow on the ground), and hulls and seed of thistles scattered where the boy claimed to have seen respondent swinging her arms. Immediately appellant telephoned one Turna, a son-in-law of respondent, telling him what he had been informed had taken place.
Respondent, in the former action as in this one, denies the charge. We accept her denial as true. But the fact remains that there is no
It appears, therefore, that there was justification for appellant’s suing respondent. He had probable cause for the civil suit. The evidence showing such probable cause being without contradiction, entirely unimpeached by other testimony or by any circumstances in evidence, there should have been a directed verdict for appellant.
Counsel for respondent argue very earnestly that this is a case within the reason of such cases as Jensen v. Fischer, 134 Minn. 366, 159 N. W. 827, and Lammers v. Mason, 123 Minn. 204, 143 N. W. 359, and that it was for the jury to say to what extent self-interest rendered the credibility of defendant doubtful when he testified as to the information given by his son, his consequent investigation and the disclosure made to his attorney. We cannot agree. This case is different in fact and principle from the cited precedents. In Lammers v. Mason, it was expressly recognized that there is no question for a jury unless, concerning the issue of probable cause, the evidence is conflicting or otherwise “fairly susceptible of different inferences.” It was just as clearly recognized in Jensen v. Fischer that uncontradicted testimony should not be left to the jury for the possible brand of incredibility unless it is “inconclusive in its nature, as, for example, where different conclusions may be reasonably drawn from it.” There the crucial testimony was considered inconclusive because there was other evidence showing contrary family practices, which cast doubt upon the denial that a son was authorized to drive the family automobile. In other words there were circumstances in the evidence putting in doubt testimony not expressly contradicted. Therefore, it was properly left for the jury to pass upon its credibility.
Such is not the case here. On the contrary, attentive consideration of the written and oral arguments of counsel and of the record, leads us to the conclusion that there is nothing in the testimony of appellant and his son concerning the disclosure made by the latter
The fact has been overlooked in this case, perhaps, that the circumstances justifying the submission to a jury of uncontradicted testimony, that is, those circumstances which cast discredit upon it, must appear in the evidence. Campbell v. Canadian Northern Ry. Co. 124 Minn. 245, 144 N. W. 772. Here we feel that the question of law, which always arises on a motion for a directed verdict, as to whether the evidence should lead reasonable minds to but one conclusion, was erroneously decided by the learned trial judge.
As to the character of the question, and the necessity for its consideration as a question of law, see State ex rel. Niessen v. District Court, 142 Minn. 335, 172 N. W. 133; Interstate Compress Co. v. Agnew, 276 Fed. 882; Pleasants v. Fant, 22 Wall. 116, 22 L. ed. 780. As was said in the last case [22 Wall. 120] the rule is to the effect “that in every case, before the evidence is left to the jury, there is a preliminary question for the judge, not whether there is literally no evidence, but whether there is any upon which a jury can properly proceed to find a verdict for the party producing it, upon whom the onus of proof is imposed.”
It may have been that there was some malice in respondent’s willingness to sue originally. But “want of probable cause cannot
Because we find in the record no proof of want of probable cause, palpable or otherwise, we hold that it was error for the learned trial court to deny the motions for a directed verdict and for judgment notwithstanding. Therefore the order appealed from is reversed and the case remanded for judgment for appellant notwithstanding the verdict.
