139 Ky. 662 | Ky. Ct. App. | 1902
Reversing.
The appellee, John Smith, instituted this suit against the appellants, O ’Daniel and wife, to recover damages upon the ground that appellants had maliciously and without probable cause had him arrested and tried for unlawfully taking and carrying away a lot of blacksmith tools belonging to the appellant, Mary, a trial before the. Judge of the Marion County Court having resulted in the acquittal of the plaintiff. The trial resulted in a verdict in favor of appellee for $200.00, which we are asked to reverse, first because of numerous errors to appellant’s prejudice in the rejection of material testimony. And second, because the court refused to direct the jury to find a verdict for the defendant. We will first consider the errors in the rejection of testimony.
Upon cross-examination of appellee, he was asked if he had not during the summer of 1899, before taking the blacksmith tools committed other depredation of a similar character upon the appellant’s farm, by removing live stock and other personal property used thereon by O’Daniel and his tenant. To which question the plaintiff objected and the court sustained the objection, this was clearly error. Lafayette Baxter was also introduced as a witness for the plaintiff. He testified that he had directed John and Dick Smith to take possession of the tools; and that a few days after they were taken he allowed appellant’s tenant, Taylor, to take some of them hack. He was asked upon cross-examination if Taylor had not paid him $3.25 before he would let him have any of the tools. In response to this question the witness answered that it was a lie, and when shown a rec'eipt
The undisputed facts disclosed by the testimony are that the appellee without the knowledge or con
In an action for malicious prosecution where the facts are uncontradicted, it is the duty of the judge lo determine the issue and apply the law, and under facts of this case we are of the opinion that a peremptory instruction should have gone. Myer v. E. St. L. & Tex. R. R. Co., 17 Ky. Law Rep., 945; Moore v. Large 20 Ky. Law Rep., 409, Hilliard on Torts V. 1, p. 438; Newell on Malicious prosecutions p. 267 and 269.
For reasons indicated the judgment is reversed and cause remanded for proceedings not inconsistent with this opinion.