51 Neb. 402 | Neb. | 1897
This was an action for malicious prosecution brought by Eegier against the Minneapolis Threshing Machine Company and Newton F. Spear. The theory of the case was that Spear instituted the prosecution in the course of his employment as agent for the Threshing Machine Company. The plaintiff recovered judgment against both defendants for $250.
Some of the assignments of error and many of the arguments advanced in the briefs are in their nature applicable to the case of only one of the defendants. The defendants below joined in the motion for a new trial and they have proceeded in this court by a joint petition in error. In such case it is the established law that unless the assignment of error can be sustained as to all who join it must be overruled as to all. (Gordon v. Little, 41 Neb., 250; Small v. Sandall, 45 Neb., 306; Harold v. Moline, Milburn & Stoddard Co., 45 Neb., 618; McDonald v. Bownan, 40 Neb., 269; Scott v. Chope, 33 Neb., 41.) We have, therefore, considered only those questions which affect the rights of both defendants.
In other jurisdictions the question has frequently arisen and the authorities are not entirely harmonious. In some states it has been held that a total want of jurisdiction in the court before which the prosecution was instituted will not defeat the civil action. (Stone v. Stevens, 12 Conn., 219; Morris v. Scott, 21 Wend. [N. Y.], 281; Hays v. Younglove, 7 B. Mon. [Ky.], 545.) On the other hand, there are cases supporting the doctrine of Painter v. Ives, to the effect that such a want of jurisdiction is fatal. (Bixby v. Brundige, 2 Gray [Mass.], 129; Marshal v. Betner, 17 Ala., 832.) In connection with the latter case, Ewing v. Sanford, 19 Ala., 605, is interesting as marking a distinction evidently in the.mind of the court between a want of jurisdiction to try the offense charged and a failure to properly charge an offense of which the court had jurisdiction. Newman v. Davis, 58 Ia., 447, was a case where it was held that the plaintiff was not liable because the complaint had not charged a criminal offense. In Shaul v. Brown, 28 Ia., 37, the same court had held that a prosecution would found an action of this character whether the statement of facts in the criminal case was sufficient or insufficient. A comparison of the two cases leads us to believe that the court in them distinguished between a complaint attempting to charge a crime, but failing in some particulars to do. so, and one charging facts not tending to establish any crime whatever, holding an action would lie in the former case and not in the latter. To illustrate: In the earlier case the attempt was made to charge larceny, the property described being a dog, and the objection made was that no such property could be had in a dog as to constitute its theft larceny. In the later case the attempt was made to charge a slander, which it is inferable was not a criminal offense.
In the briefs complaint is made of a number of rulings on the introduction of evidence. Only two of these are specifically assigned in the petition in error, and these alone are properly presented for review. There was in
Q. Do you know whether the Omaha Bee is circulated at Henderson?
A. Yes.
Q. Much?
A. Yes.
Q. Dq you know whether it is circulated in York county generally?
A. Yes.
No objection was interposed to any of these questions. No fact is better understood by practitioners than the difficulty of inducing a witness to distinguish between a statement as to his knowledge "With reference to a fact and a statement of the fact as known to him. The monosyllabic question, “Much,” with the witness’s answer, “Yes,” shows clearly that the witness in answering these questions referred to the fact of the Bee’s circulation, and
There was introduced in evidence a written contract whereby a stranger to the action transferred the property alleged to have been stolen to the plaintiff. It was objected that the execution of this contract was not proved, but counsel in this respect has evidently overlooked the evidence, which is direct as to the genuineness of the signature. It is also contended that the contract was immaterial. The circumstances are too complex for statement here. It is sufficient to say that this contract, in connection with the other evidence, tended to show a Iona fide claim of ownership in the plaintiff.
Many objections are urged to the instructions. These objections present no very important question of law and will not be noticed in detail. Some instructions, taken alone, would be incomplete and even inaccurate. But the charge, taken as a Avhole, was applicable to the evidence, and fairly stated the law of the case in such a way as to supply defects and cure inaccuracies in particular instructions and without any conflict of statement.
It is urged that the verdict was excessive. General damages are recoverable in such a case, and while it does not appear that the plaintiff was actually incarcerated, he was placed under arrest and subjected to the ignominy of a criminal prosecution. Two hundred and fifty dollars is certainly not in any case too much to compensate one for such an injury. It is probable that the verdict includes $25 as attorneys’ fees incurred in procuring plaintiff’s discharge. It does not appear that this was actually paid, but it is well settled that where such expenses are recoverable at all the legal liability is sufficient whereon to base a recovery, although payment has not yet been made.
It is suggested that the evidence is insufficient. We
Affirmed.