McIntosh v. Wales

134 P. 274 | Wyo. | 1913

Scott, Chirr justicr.

The defendant in error as plaintiff recovered judgment for the sum of $500 and costs against the plaintiffs in error as defendants in the District Court of Fremont County for an alleged malicious prosecution. A motion to set aside the verdict and for a new trial was filed, which the court overruled and the defendants bring error..

There are two separate counts contained in the petition, but the court withdrew the first and the issue as finally submitted to the jury was upon the second count and the evb dence directed thereto. It is alleged in the second count as follows:

“And the said plaintiff, Nancy Wales, further complains of the said named defendants, P. J. McIntosh, Jesse Johnson, and Donald A. Beaton, and each of them, and for her second cause of action alleges and says that on the 30th day of May, A- D. 1910, the said named defendants, and each of them, wrongfully, falsely and maliciously, and without probable cause, before Emil Jamerman, a Justice of the Peace in and for the County of Fremont in the State of Wyoming, charged that this plaintiff did, on the 22nd day of May, A. D. 1910, and during the last five years prior to said date, in Rongis, in the County of Fremont, State of Wyoming, unlawfully, maliciously and feloniously steal unbranded calves from the range adjacent to the ranch of this plaintiff and adjacent to the ranches of John Wales and William Johnson, and thereupon prayed and demanded that this plaintiff be forthwith apprehended on the said charge of the said defendants, and said defendants caused this plaintiff to be wrongfully arrested, detained and deprived of her liberty and be brought before the said magistrate and be arraigned to plead to the said charge on the said 30th day of May, A. D. 1910.

“That this plaintiff was so wrongfully detained, imprisoned and deprived of her liberty for the space of about five hours and was compelled to leave her home and work and be taken under arrest a distance of about eight miles and to be taken before the magistrate in the presence of a large number of the friends and neighbors of this plaintiff and accompanied by the defendants as complainants, and the said defendants there caused and procured the said magistrate to order this plaintiff to give bond and this plaintiff was then and there-compelled to give bond in the sum of $500.00 for her further appearance before the said magistrate at a time fixed by him, and in default of said bond that she stand committed to the County Jail in said County of Fremont, that plaintiff was afterwards required without her consent and against her will to be and appear before the said magistrate on the 15th day of June, A. D. 1910, and again on the 25th of June, A. D. 1910, to answer said charge.

“That afterwards, on the 25th day of June, A. D. 1910, the said cause came on for hearing before Emil Jamerman, Justice of the Peace, and John Dillon, County and Prosecuting Attorney for the said County of Fremont, appeared on behalf of the prosecution of said cause, and after inquiry and investigation, said John Dillon as such Prosecuting Attorney failed and refused to prosecute said charge and the said charge against this plaintiff was without the consent of the said named defendants herein dismissed and this plaintiff was acquitted of said charge and then released from custody, and said prosecution is now ended and wholly determined.

“And this plaintiff says -that she was not guilty of the charge made by said defendants and was never before charged with being guilty of any crime whatever, and up to that time had always been esteemed a good and worthy citizen and respected by all her neighbors and acquaintances in the community where she resides, and the plaintiff further says that the charge was made by the defendants against this plaintiff and said arrest and detention of said plaintiff was made and caused without any probable cause to suspect the plaintiff guilty of the charge as made by said defendants, or of stealing any livestock whatever; and the said arrest of plaintiff was malicious and was caused and procured by the said defendants in furtherance of their expressed intention and design to prosecute and litigate this plaintiff and involve this plaintiff in expensive litigation until she would be forced to abandon her' residence and home in the community and dispose of her holdings "to the said defendants and those interested with them, to the end that the said defendants for their benefit and profit might have the fences removed from around the lands of this plaintiff and of her husband and permit the said defendants easy access to the open territory and stock range upon the mountain and beyond the holdings of this plaintiff and of her said husband.

“That by reason of the wrongful acts of the said defendants this plaintiff has been greatly injured and damaged in her credit, standing and reputation in the community where she resides, and has been brought into public scandal, infamy and disgrace, and has suffered great anxiety, mental anguish, great humiliation, shame and disgrace, and has been obliged to expend the sum of $100.00 in procuring her discharge from said prosecution and imprisonment.

“That the whole of said proceedings by said defendants against this plaintiff were unlawful, wanton and malicious, and have greatly distressed and humiliated plaintiff and injured her in her good name and reputation, and by reason of the premises plaintiff has been damaged in the sum of Ten Thousand Dollars.

“WsRRRRORR, Plaintiff prays judgment against the said named defendants, P. J. McIntosh, Jesse Johnson, and Donald A. Beaton, and each of them, in the sum of Ten Thousand Dollars, and that Plaintiff may have and recover such other further or different relief as may be just and equitable.” .

The defendants answered jointly, denying generally and specifically each allegation of the petition, alleged that defendants stated the facts to the justice in good faith, for good cause believed to exist as a duty to the public and for no other reason whatsoever, and denied that they brought about her arrest without probable cause. The plaintiff filed her reply putting in issue the new matter alleged in the answer.

It is assigned as error (1) that the court erred in overruling defendant’s demurrer to the second cause of action on the ground that it failed to state facts sufficient to constitute a cause of action; (2) that the court erred in refusing plaintiff’s motion at the close of the testimony to instruct the jury to find for the defendants; and (3) that.the evidence does not support the verdict and that the court erred in not granting the motion for a new trial. The essential elements necessary to be shown by the petition and evidence in an action for malicious prosecution are (1) the institution of the proceedings; (2) without probable cause; (3) with malice; (4) that the proceedings have terminated and in plaintiff’s favor; (5) damage to plaintiff. (19 A. & E. Ency. of Law, 653, 13 Ency. PI. & Pr. 427.) In the case here the evidence tends to support the allegations of the second cause of action contained in the petition and if sufficient to entitle the plaintiff to recover what we have to say on that question would be determinative of the sufficiency of the petition. It is urged that proof to the effect that the information which failed to charge plaintiff with the commission of an offense under the laws of this state and the warrant issued thereon were written and prepared by the justice of the peace, the defendants doing nothing more than signing the information and taking no part in the arrest or any other .or further action after signing the information is not sufficient to maintain the action. It is also contended that the dismissal of the criminal proceeding by the justice of the peace at the request of the prosecuting attorney without submitting any evidence was not a termination of that proceeding in plaintiff’s favor.

The argument as to the first contention is based upon a false premise. The evidence is undisputed that the defendants applied to the justice, furnished him the information, and subscribed to the complaint as the basis of the prosecution, but that they each made oath to the same. Whatever facts were stated in the information were supported by their oaths, and furthermore the jury had a right to presume that they made oath thereto to secure the issuance of the warrant upon which the plaintiff was arrested. The machinery of the law was intended to be put in motion and to all intents and purposes in so far as these defendants are concerned it was, and if their acts were malicious and without probable cause then they could not escape liability in a civil action for damages on the ground that they took no further part in the prosecution or proceedings after signing the complaint.

It may be conceded, as eminent counsel for the defendants claim, that the complaint or information filed before the justice of the peace and upon which the warrant issued did not state a criminal offense, and it may further be conceded that the courts are at variance as to whether an action for malicious prosecution upon such a complaint can be maintained. The great weight of authority supports the right and we think the better reasoning sustains that view. In Shattgen v. Holnback, 149 Ill. 646, 36 N. E. 969, it is said: “It is not necessary, in order to sustain an action for malicious prosecution, that the affidavit on which the prosecution was based properly charged the offense.” It may be said that that court had reference to a defective description of an offense, but not where there is no offense charged in the criminal complaint. In Bell v. Keepers, 37 Kan. 64, 14 Pac. 542, it was held that “in an action for malicious prosecution it is no defense that the complaint upon which the warrant of arrest was issued did not state a criminal offense.” The reasons for so holding were pointedly stated in that case as follows: “A warrant was issued substantially following the complaint, and it is now claimed that this complaint does not state a criminal offense, and for this reason plaintiff insists that no action for malicious prosecution can be maintained for the arrest made thereunder. This is no longer an unsettled question in this state. This court has repeatedly held that it could not protect a complainant after procuring a warrant to issue on his complaint, to say in answer to a charge Of malicious prosecution, that the complaint charges no crime. A void process procured through malice, and without probable cause, is even more reprehensible, if possible, than if it charged a criminal offense. The wrong is not in the charge alone, but more in the object and purposes to be gained, and the intention and motive in procuring the complaint and arrest. The contents of the complaint, when maliciously made, without good cause, are of but little consequence and can give no protection.”

In Mask v. Rawls, 57 Miss. 270, it is said that “trespass on the case lies for malicious prosecution, although the affidavit which was the commencement of the prosecution fails to charge an offense known to the law.” To the same effect is Lueck v. Heisler, 87 Wis. 644, 58 N. W. 1101. In the note to Ross v. Hixon, 46 Kan. 550, 26 Pac. Rep. 955, 12 L. R. A. 760, 26 Am. St. 123, 129, Mr. Freeman says: “It may be that the charge as made does not constitute a public offense, or that for some other reason no conviction can be had under it, or though constituting some offense, it does not justify the proceeding taken or warrant issued by the magistrate, and cannot for that reason result in a conviction. In each of the instances supposed, there cannot, if the law is properly construed and applied, be any conviction, and on that account it has been insisted that there is no prosecution such as will sustain an action, though it is shown to be malicious and without probable cause. As we shall hereafter show, it is necessary, to maintain an action for malicious prosecution, that the defendant was guilty of malice and acted without probable cause in preferring the charge which he made. If both of these elements are shown to have been present, it is not material that the prosecutor, in the complaint which he made, did not state facts sufficient to constitute a crime, or that some irregularity of proceeding after the complaint was preferred made the arrest under it improper and unauthorized. Hence, if the charge as made was false, malicious, and without probable cause, the person prosecuted cannot be deprived of compensation for such injury as may have resulted to him from it, by proving that the affidavit or complaint was defective in not charging a criminal offense or that the proceedings were otherwise irregular.”

As already stated there'are courts which have held contrary to the views of Mr. Freeman as above expressed, arid to those courts from whose opinions the above quotations are taken, but we think the better reasoning is with the courts which hold that the action can be maintained even though the affidavit upon which the warrant was issued failed to charge a criminal offense, provided the other necessary elements are present in order to make out a case. Indeed to hold otherwise, would, we think, be contrary to the policy of the law, for it would deprive the injured party of a remedy for what is usually a great wrong and far-reaching in its effect.

It is urged that the dismissal of the case by the justice of the peace at the request of the County and Prosecuting Attorney without the introduction of any evidence was not. such a termination of the criminal proceeding as to enable plaintiff to maintain her action. In Graves v. Scott et al., 104 Va. 372, 51 S. E. 821 (2 L. R. A. (N. S.) 927, 113 Am. St. Rep. 1043, 7 A. & E. Ann. Cas. 480), the plaintiff was arrested on a warrant issued upon a criminal complaint charging him with obtaining goods under false pretenses. The complaint was dismissed at the time set for trial because of the failure of the prosecuting witness to be sworn and give evidence, and it was held that this was such a termination of the case as would support an action for malicious prosecution for the reason that the case had been disposed of in such a manner that any further action would have .to be based upon a new complaint, or by proceedings de novo. The case is an interesting one. both upon the law and facts and also because of the appended note as to when a criminal proceeding is terminated and the right to maintain an action for malicious prosecution accrues. In the case before us the dismissal of the proceedings at the request of the prosecuting attorney put an end to any further proceedings against the plaintiff upon the criminal complaint theretofore filed. Further proceedings upon that record could not be revived and were at an end, though such dismissal would be no bar to a prosecution for the same offense charged in a new and different complaint. That being so we are of the opinion that the better reasoning and great weight of authority sustains the view that the dismissal of the proceedings by the justice was a sufficient termination thereof to enable plaintiff to maintain the action. (19 A. & E. Ency. Law, 681; 26 Cyc. 58.)

It was necessary in order to maintain her action to prove that the defendants acted maliciously and without probable cause. It is urged that proof of the dismissal of the proceeding at the request of the county and prosecuting attorney without submitting any evidence to the justice before whom the proceedings were had was not proof of want of probable cause. As already stated, the evidence of dismissal was admissible as showing a termination of the proceeding, and while theoretically the county and prosecuting attorney was acting officially for all citizens, including the defendants, yet he was not their attorney. He was acting in his official capacity and for the state and not under employment or direction of the defendants. Had they employed a private attorney to draw up the complaint and file it, and such attorney had asked the dismissal, his action would be construed as their act, through their authorized agent, but we are unable to understand how the act of the public prosecutor in procuring the dismissal of the criminal complaint and proceedings which were not instituted by him or upon his advice without having'produced any evidence in support of the charge would be evidence against the defendants upon the issue of want of probable cause in commencing the action. It should be remembered that the issue before the justice was not the guilt or innocence of the accused, but whether or not a crime had been committed, and if so, whether there was probable cause to believe that accused committed such crime. Probable cause to justify a criminal prosecution may exist even though the prosecuting witness acts maliciously if the charge be true, and even if the charge be not true, yet if such witness acts honestly and in good faith, basing his charge upon facts which he in good faith believes to be true, but which afterward turns out to be false, he cannot be said to have acted without probable cause'. It was said in Philpot v. Lucas, 101 Iowa, 478, 70 N. W. 625, that “Probable cause does not depend upon the guilt or innocence of the accused party in fact, but upon the honest and reasonable belief of the party commencing the prosecution.” If the „rule were otherwise every good citizen would expose himself to an action for malicious prosecution when in performing his duty to the state to assist in the suppression of crime he in good faith subscribed to an affidavit as the basis of a criminal prosecution or proceeding, if such prosecution or proceeding be dismissed without a judicial determination upon a hearing from the evidence upon the question of probable cause. In the case here the proceeding was dismissed by the magistrate, not upon a finding from the evidence upon that question, but upon motion of the prosecuting attorney. The distinction we think is clear between this and like cases and those where the question has been judicially determined by the committing magistrate from evidence before him. He could make no affirmative finding on that question in the absence of any evidence before him. The question is important as bearing on the sufficiency of plaintiff’s evidence to make out a prima facie case. The burden was upon her to prove that the prosecution was without probable cause, and we are constrained to believe from an examination of the adjudicated cases that upon the facts here a dismissal of a criminal complaint in the absence of a waiver of a hearing before the committing magistrate upon motion of the prosecuting attorney, without any evidence having been submitted to such magistrate, is not a judicial determination by such magistrate of the existence of probable cause, nor evidence thereof in an action for malicious prosecution subsequently instituted and based upon such proceedings. In Davis v. McMillan et al., 142 Mich. 391, 105 N. W. 862, (3 L. R. A. (N. S.) 928, 113 Am. St. Rep. 585, 7 Ann. Cas. 854), which was an action for malicious prosecution, the court say: “We think it can safely be said that the weight of authority deines the rule that discharge by a magistrate upon the request of the prosecuting attorney is prima facie evidence of want of probable cause.” The holding of the court in that case and as stated therein accords with the great weight of authority. Such a dismissal can not be said to be predicated upon the sufficiency or insufficiency of the evidence, but upon the expressed desire of the state speaking through its prosecutor to abandon the case without introducing evidence and invoking a finding thereon.

The finding of the jury, the verdict being general, was a finding upon all the issues in favor of the plaintiff. It is contended that the verdict, unless the dismissal upon request of the State be deemed competent, finds no support in the evidence that the prosecution was commenced without probable cause. In this connection it may be said to be the established rule that malice may be inferred from a showing of want of probable cause, but that want of probable cause will not be inferred from proof of malice alone. (19 Cyc. 680.) Both elements are necessary to be shown to warrant a recovery in this kind of an action, although malice may be inferred from a showing of want of probable cause. As to what evidence is admissible as showing want of probable cause, it is said in 19 Cyc., at page 698: “It has been held that the plaintiff is entitled to introduce proof of his general good character or reputation on the question of want of probable cause for the prosecution, or the defendant’s belief in his guilt, and this as a part of the plaintiff s affirmative case and not merely in rebuttal of an attack upon his character by evidence on the part of the defense. But of course it should be shown 'in addition that the defendant had knowledge of the plaintiff’s good reputation.” In the case here the plaintiff testified that she never stole any calves from defendants, or either of them, off the range, or from any other place, and was permitted to and did introduce as a part of her affirmative case proof of her general good character or reputation for honesty and integrity upon the question of want of probable cause for the prosecution. A number of witnesses who had 'known her for many years in the vicinity in which she .lived testified that her general reputation in that respect was good. The defendant Johnson was her uncle, and he had known her in that community from childhood, she being the daughter of his deceased brother. Such acquaintance, and for the length of time shown, we think raises a presumption of his knowledge of her reputation. (Woodworth v. Mills, 61 Wis. 44, 20 N. W. 728, 50 Am. St. Rep. 135.) In Olson v. Tvete, 46 Minn. 225, 48 N. W. 914, it appeared in evidence that a search warrant was issued and served at the instigation of the defendant, the premises searched and the property alleged to have been stolen and there concealed was not found .and the officer who served the warrant so returned and it was further in evidence that the plaintiff had long borne a good reputation for honesty and integrity. At the close of plaintiff’s case the court dismissed the action and upon appeal the judgment was reversed. The court say: “We think the proof made a prima facie case of want of probable cause, from which malice might be inferred, and that it was error to take the case from the jury. It is true that the burden of proof was upon the plaintiff to show that the proceeding was instituted without probable cause and with malice. But in such a case it must often be that the only proof possible from the plaintiff is of a negative character, and in reference to matters peculiarly within the knowledge of the defendant; and hence less satisfactory and convincing proof is required of the plaintiff to shift the burden on the defendant than would otherwise be necessary. The proof of a thorough search, and the official return to the warrant that the property was not found in the plaintiff’s possession, was prima facie proof that the property was not there, and that the plaintiff was not guilty of concealing stolen goods, or of larceny. Proof of the plaintiff’s good reputation for many years in the community went to show an improbability that the plaintiff would be guilty of the conduct implied in this charge, and of this the defendant may be presumed to have been aware. (McIntire v. Levering, 148 Mass. 546, 20 N. E. Rep. 191, (2 L. R. A. 517, 12 Am. St. Rep. 594); Israel v. Brooks, 23 Ill. 575; Blizzard v. Hayes, 46 Ind. 166, 15 Am. Rep. 291; Woodworth v. Mills, 61 Wis. 44, 20 N. W. Rep. 728, 50 Am. Rep. 135.) Such proof having been made, it was fairly incumbent on the defendant to show affirmatively, as he could easily do, the facts, if any existed, justifying a belief on his part in the truth of the allegations upon which the search-warrant was procured.”

This decision is one of the many cited in Cyc. supporting the text above quoted, and while it is the general rule as therein stated, that one may not introduce evidence as to his general reputation for honesty and integrity before his character has been assailed in that respect, yet the courts generally have made an exception in this class of cases, as the burden is upon the plaintiff to negative the existence of probable cause, or to show want of good faith on the part of the defendant in the prosecution of the criminal charge. Such a rule is founded in justice and gives the defendant no shelter from his wrongful act, purposely and maliciously accomplished. The defendant is then given the fullest opportunity to show affirmatively in his defense that he acted in good faith or upon probable cause. The defendants in order to show that they acted upon probable cause in instigating the criminal proceeding, introduced evidence of different witnesses tending to show that plaintiff’s reputation for honesty and integrity was bad, and also evidence of different circumstances of which defendants had information prior to the prosecution. It may be conceded that such information standing alone, if honestly believed, would be sufficient to raise in the mind of a reasonably prudent man a well-grounded suspicion that plaintiff had at various times prior to the prosecution been stealing unbranded calves of these defendants and others from the range, and have constituted probable cause for the prosecution. The evidence upon the latter questions was denied by the plaintiff in her testimony. -There was, therefore, a direct conflict in the evidence as to the existence or non-existence of the facts relied upon to constitute probable cause and this question was properly one for the jury. We are of the opinion that the second cause of action as pleaded stated facts sufficient to constitute a cause of action in favor of the plaintiff and against these defendants, and that there was sufficient evidence to make out a prima facie case to go to the jury at the close of the testimony, and that the verdict is supported by the evidence.

The plaintiff testified that one of the effects of her being publicly arrested and taken before the justice of the peace was that it injured her credit at the First National Bank of Rawlins. The following inquiry was then made, viz.: “Just tell the jury the facts as to how it was hurt, and what the transaction was.” The question was objected to as follows: “We object to this; the best testimony as to whether credit was refused would be that the bank itself.” The court overruled the objection and such ruling is here assigned as error. It will be observed that the objection goes to the manner of proof and not to the competency of the evidence. If competent at all, and it was not objected to on that ground, the fact could be proved by her as well as by the bank officials, for it would be a fact within her knowledge. We express no opinion as to whether this evidence was competent for that question was not presented to nor ruled upon by the trial court in the first instance and consequently can not be raised for the first time in this court.

Plaintiff testified as to the land holdings' and stock business of Jesse Johnson, one of the defendants. Afterwards the defendants made and the court overruled the following motion, viz.: “I move the court to withdraw from the jury all statements made by this witness as to the business of Jesse Johnson, the amount of land he holds, and any business matters that have been stated by the witness, on the ground that it does not tend to prove any issue in the case; is not relevant to any issue in the case; that the value of a man’s property or the extent of his holdings is not a fact to be considered in sustaining the petition in the case. I make the motion at this time because it is sometimes held that we waive our right if we proceed with the cross- examination before making the motion.” The action of the court in overruling this motion is hpre assigned as error. We do not think the motion was by its terms directed to anything other than evidence given by her with reference to the business and land holdings of defendant Jesse Johnson. The relative situation of his land and that occupied by plaintiff was illustrative and bore on the question of motive and interest to defendant Jesse Johnson to get her and her husband out of the country as alleged in the petition, so that he could have freer access to the range for his cattle; and further, as hereinafter stated, as punitive damages upon the facts shown were recoverable, evidence of defendant Johnson’s'financial condition was admissible. (19 Cyc. 700.)

Plaintiff was further permitted to testify over objection that she and her 'husband paid an attorney’s fee to Stone & Winslow for attending the justice court in their behalf on June 25, 1910. While the ruling was not assigned as error the sufficiency of such evidence to warrant a recovery of attorney’s fee may be considered under the general assignment (1) that there was error in the assessment of the amount of recovery, the same being too large. The right to recover a reasonable attorney’s fee in a case of this kind is well established. Evidence that such a fee amounting to $250 had been paid by herself and her husband was proper to go to the jury as an item of expense if reasonable in amount, and it appearing that the hearing was held in a country precinct a distance of eighty miles from the county seat where her attorneys resided, without railroad connection,' we think it may be assumed that the amount was reasonable although its reasonableness was not shown by testimony. (Waufle v. McLellan, 51 Wis. 484, 8 N. W. 300.) There was evidence of actual malice on the part of the defendant Johnson which would warrant the recovery of punitive damages as against him, (Cosgriff v. Miller, 10 Wyo. 190, 68 Pac. 206, 98 Am. St. Rep. 977) and joint error being here assigned if the judgment be good as to him it is good as to all the defendants, and upon the record, the other defendants having joined with him in the assignments of error, they are not in a position to complain. (North Platte Milling Co. v. Price, 4 Wyo. 293, 306, 33 Pac. 664; Hogan v. Peterson, 8 Wyo. 549-564, 59 Pac. 162; Greenawalt et al. v. Imp. Co., 16 Wyo. 226, 92 Pac. 1008; Ditch Co. v. Peterson, 18 Wyo. 402, 108 Pac. 72.) The verdict was for $500, which we think reasonable upon the issues being found in favor of the plaintiff. There is no claim in. her evidence that she paid or obligated herself to pay all of the attorney’s fee. Her evidence was that “we” (meaning herself and her husband) “paid $250 to Stone & Winslow for their services.” The jury had a right to award her a reasonable attorney’s fee necessarily incurred or paid for her defense in the prosecution, whether paid by herself (19 Am. & Eng. Ency. Law, 703) or some one else for her (Krug v. Ward, 77 Ill. 603) and upon the record the verdict being general we cannot say in making up their verdict what amount the jury allowed her for attorney’s fee. The amount of expenditure alleged in the petition to procure her discharge from the criminal prosecution was $100, but the jury may have allowed her less than that amount for attorney’s fee and the balance of the verdict be for other items of expenditure and damage, which were alleged and in proof and also exemplary damages.

Errors are assigned as to the admission and exclusion of evidence over defendant’s objection. We deem it unnecessary to discuss these questions in detail, as they are not so discussed in plaintiff in error’s brief, nor are their prejudicial character, if any, pointed out in their brief. The attention of the court is called to these alleged errors in a general way, casting upon this court the burden of searching the record to ascertain if error was committed, a burden which rests in the first instance with the plaintiffs in error. We have, however, examined the record and discover no prejudicial error as to the rulings of the court in-that respect.

Errors are assigned to the court’s refusal to give certain instructions requested by defendants and to the giving of certain instructions over their objections. We have examined these questions and find that the refusal to give the instructions requested and the giving of the instructions objected to are complained of because contrary to the contention of defendants that there was a failure in proof to sustain the action. As we have already held that the proof was sufficient to make out a prima facie case sufficient to go to the jury we deem it unnecessary to discuss these questions further than to say that, in our opinion, the instructions fairly presented the law of the case to the jury. The judgment will be affirmed. ' Affirmed.

Potter, J., and Beard, J., concur.