148 N.W. 598 | S.D. | 1914
Plaintiff, an employee of the defendant company at Aberdeen, was, on February 8, 1908, arrested upon a complaint made by one Sheehan, a special agent or detective of the company, charging him with the theft of company coal on October 25, 1907. A preliminary hearing was had on February 13, 1908, and he was bound over to the circuit court and confined in the Brown county jail until March 27, 1908, when he was' released upon bail. On December 5, 1908, the cause was dismissed without trial upon the recommendation of the state’s attorney. This is an action for malicious prosecution and was begun nearly five years after plaintiff’s arrest, viz., on January 8, 19x3.
At the conclusion of the trial, the learned trial court directed the jury to> return a verdict for defendant, upon the ground that the state’s attorney of Brown county, upon a full and fair statement of all the facts known to¡ the detective or which he could ■reasonably learn, advised the detective that the facts recited constituted sufficient evidence to justify the prosecution; that it constituted probable cause to> believe this plaintiff guilty. Krause v. Bishop, 18 S. D. 298, 100 N. W. 434. Appellant urges:
“(a) That the question as to whether or not Sheehan ascertained all the material facts in connection with the question of the guilt of Malloy, which a reasonably diligent investigation would have disclosed, was for the jury.
“(b) That the question whether or not Sheehan made a truthful statement of those facts within his knowledge to L. T. Van Slyke, the state’s attorney, was for the jury.
“ (0) That the question -as to whether or not Sheehan filed the information under instructions from the ‘company,’ or under the direction of Van Slyke, was for the jury.
“(d) That the question as to whether or not Van Slyke advised Sheehan to file the- information was for the jury.
“(e) That the question as to whether or not, if Van Slyke advised the prosecution, Sheehan acted under the advice in good faith, or because he was instructed to do so by the company, was for the jury.
“(f) That the question as to whether or not the prosecution of Malloy was instituted by Sheehan in good faith, for the purpose of vindicating the law, or was instituted by him for the pur*334 pose of forcing Malloy to give information respecting the guilt of another, was a question for the jury.”
“Q. You did not tell Mr. Van Slyke anything about Malloy’s character, did you? A. I told him all I had found out about it. Q. What did you tell him about Malloy’s character when you went to him ? A. I told him what I had found out about his coal deals, and one thing and another, and that he had been drinking a good-deal around town -and had been discharged for being drunk on duty. I heard a rumor around there that he was discharged for being drunk and that he used to leave the engine in the yard and go off to- the saloon. Q. Why did you tell him that Malloy was a man who drank? A. Well, I heard it from1 several parties and several railroad men. Mr. CuIIy, the yardmaster, and the chief of*335 police, Mr. Zerbes, told me, and I guess pretty nearly everybody I asked; they all said the same thing. I did not tell Van Slyke anything about him being a man of bad character or thief or anything like that. I explained what he had done about leaving his engine and going to the saloon. I did not explain anything- about him being a man of bad character or thief or anything like that. I did not tell him that he had been stealing before. I just told him what O’Brien and Pickering had said. I did not tell him, that I had investigated his character.”
There is nothing further in the record which throws light upon plaintiff’s character or reputation. We do not think, under the facts in this case, that Sheehan can be held at fault in not • making further inquiries as to plaintiff’s character. If it had been shown that Sheehan knew that plaintiff’s reputation for honesty was good and that he had failed to report such knowledge to the state’s attorney, then a different question would be presented. 19 A. & E. Ency. (2d Ed.) 698; McIntosh v. Wales (Wyo.) 134 Pac. 274; Johnson v. Miller, 69 Iowa, 562, 29 N. W. 743, 58 Am. Rep. 231; Holliday v. Holliday, 123 Cal. 26, 55 Pac. 703.
It further appears that, on the night before the complaint was filed, Sheehan, Mr. Van Slyke, the state’s attorney, Mr. J. PI; Perry, an attorney for the company, the chief of police, and Morrison, the superintendent of the company'', were at Mr. Perry’s office, and that plaintiff was sent for and appeared there. Pie was charged with the crime and denied it. He said that questions were also asked of him in regard to his relations with Anderson and that they wanted him to give testimony which would help convict
“We are of the opinion that, in the absence of proof of malice, other than proof that the plaintiff was acquitted, it is the duty of the court to presume that the defendant acted in good faith, as actual malice and bad faith are never presumed by the court.”
A careful examination of the printed record fails to reveal any substantial conflict in the testimony as to the grounds upon which the trial court directed the verdict.
The other assignments of error argued, 51 in number, relate to rulings upon evidence. Two-thirds of these relate to evidence admitted over plaintiff’s objection. It is unnecessary for us to pass upon the rulings admitting evidence, because, in the absence of the required statement in the brief that it contains all of the material evidence received upon the trial, we must assume that there was admissible evidence sufficient to support the verdict. Every necessary presumption is indulged in to sustain the action
“To sustain the action it must affirmatively appear as a part of the case of the party demanding damages that the party sought to be charged was the proximate and efficient cause of maliciously putting the law in motion.”
It occurs to us that it clearly appears that the state’s attorney was the proximate and -efficient cause of putting the law in motion, and moreover that there was an entire absence of malice on the. part of any -one.
The judgment and -order denying a new trial are affirmed.