57 Iowa 474 | Iowa | 1881
The defendant’s counsel, upon cross-examination, then asked Jackson a question in these words: “ State if in the discussion of the case before the grand jury on the part of the gentlemen composing it, whether Mr. Masteller’s evidence was spoken of, or taken into consideration in passing upon it.” This question was objected to by plaintiff, and the objection sustained. In sustaining the objection the defendant claims there was error.
The evidence, we think, was rightly excluded for this reason
The plaintiff objected to this question, and the objection was sustained. In excluding the evidence the defendant claims that the court erred.
We think that the most that the witness could properly be allowed to state, were the facts as to his opportunity for seeing the fire, if he had looked in the direction of the hay and it had then been burning; whether he looked in that direction; and whether he saw any fire. After he had stated the facts, it was for the jury to form an opinion and not the witness, as to whether the hay was burning at that time. In refusing to allow the question to be asked, we think, that there was no error.
The crime for which the plaintiff was prosecuted is spoken of in the pleadings by both plaintiff and defendant as arson. The court evidently used the word in the same sense, and the jury must have so understood it. Where a jury follows an instruction in the sense in which it was intended, we cannot reverse, because they did not follow it in a sense in which it was not intended.
The statement contained in the instruction, that “ the question of probable cause does not depend upon the question whether the plaintiff was guilty in point of fact,” is certainly correct to this extent, that there might be probable cause, and the plaintiff not be guilty. Some of us are inclined to think that this is all that the court intended to hold. But it is possible that the court intended also to hold that there might be
According to the weight of authority the rule appears to be, that if the defendant can satisfy the jury that the plaintiff, notwithstanding his acquittal, was in fact guilty of the crime with which he was charged, no recovery can be had. Bacon v. Town, 4 Cush., 239; Adams v. Lisher, 3 Blackf., 241; Whitehurst v. Ward, 12 Ala , 264; Bell v. Pearcy, 5 Ired., 83; Johnson v. Chambers, 10 Id., 287.
V. Error is assigned upon another part of the same instruction and that is the part pertaining to the defendant’s belief. There might be a want of probable cause, and a belief on the part of the defendant that the plaintiff was guilty. Whether the existence of such belief would exclude malice and thereby prevent a recovery we do not determine. Such question is not presented.
But the thought of the instruction appears to be that to constitute probable cause, there should be both belief in the mind of the prosecutor of the guilt of the accused and reasonable grounds for the belief, or at least there should be sufficient facts and circumstances known to the prosecutor to raise a reasonable ground of suspicion in the mind of an ordinarily cautious man.
In view of the evidence introduced to prove actual guilt, we think that the instruction should have been given with the qualification that no recovery could be had if the jury believed the plaintiff actually guilty
The only evidence that the plaintiff incurred costs is his own statement, as a witness, that he was compelled to employ counsel to defend him. Such being the fact the defendant contends that the evidence did not justify the instruction, and in this it appears to us that the defendant’s position is well taken. It may be, as .the plaintiff contends, that the fact that he was compelled to employ counsel entitled him to a nominal recovery for counsel fees, even in the absence of any evidence as to the reasonable amount paid or agreed to be paid. But the instruction was evidently not drawn with the view of suggesting any
VIII. In the same instruction the court told the jury that actual damages would include compensation for bodily and mental suffering. In this it is insisted that the court erred.
It is sufficient to say that upon a careful consideration of this question by this court in McKinley v. The C. & N. W. R. Co., 44 Iowa, 319, it was held otherwise. The defendant’s objection therefore cannot be sustained.
We do not care to go into an elaborate discussion of the vexed question of compensatory and exemplary damages. While it may be true that this court would include within compensatory damages all that some other courts would regard as constituting a basis for the allowance of exemplary damages,
Some other errors are assigned which we have not considered. The questions presented will probably not arise upon another trial.
Reversed.