189 N.W. 684 | N.D. | 1922
Lead Opinion
This is an action for the malicious prosecution of an inquisition of lunacy. The complaint alleges, and the evidence shows, that, on or about March 28, 1919, the defendant filed an information, verified by him, with the commissioners of insanity of Walsh county in this state, charging the plaintiff with being an insane person; that a -warrant was issued upon such information and the plaintiff arrested and taken into custody; that while in such custody she was imprisoned for one night in the jail of Grand Porks county and for about three days in the jail of Walsh county; that after a full hearing before the commissioners of insanity, the plaintiff was adjudged by said commissioners not to be insane, and was thereupon discharged.
The plaintiff charges that the proceeding before the commissioners of insanity was instituted maliciously, and without reasonable or probable causé, and that by reason thereof the plaintiff was brought into public scandal, infamy, and disgrace and suffered great anxiety and pain of body and mind to her damage in the sum of $20,000. The defendant interposed a general denial to the complaint. The case was tried to a jury and resulted in a verdict in favor of the plaintiff for $6,000, and defendant has appealed from the judgment.
In his brief on this appeal the defendant says: “The issues on • this appeal are: Did the defendant have probable cause for swearing out the complaint charging plaintiff with insanity ?
“Did the defendant prosecute the action maliciously?
Tire plaintiff started to work for the defendant as his housekeeper in 1898 and continued to do so until 1912. Shortly after plaintiff entered into defendant’s employment they commenced to live together for all purposes and intents as husband and wife. Such unlawful cohabitation commenced according to the testimony of the defendant about two weeks after plaintiff entered his employ, and according to the testimony of the plaintiff about one year after she entered his employment. The plaintiff claims that the defendant proposed marriage, and that the relations arose and continued to exist by reason of and on the strength of the promise of marriage. It appears in the record that a prior action was brought by the plaintiff against the defendant for a breach of promise to marry and that she was awarded a verdict in some amount in that action. In 1912 the plaintiff left the defendant and moved to her homestead some miles distant from defendant’s farm and has continued to reside there from that time on. Interim 1912 and 1918, however, the defendant continued to visit the plaintiff at her home and their former intimate relations continued. In 1918 the defendant employed one Miss Ella Minden as his housekeeper. In the slimmer of 1918 the plaintiff came to defendant’s house to see him and, according to the testimony of the plaintiff, she at that time entreated him to comply with his promise to marry her; that she at that time was pregnant as a result of her relations with the defendant and informed him of that fact; that she again came to see defendant in the fall of 1918 during the threshing season; that Ella Minden was at that time employed as a cook in the cook car with the threshing outfit; that on this occasion the plaintiff stayed in the house over night; that Miss Minden and her sister slept in the cook car and that the defendant slept part of the time in the cook car and part of the time in the bam. On March 6, 1919 the defendant was married to Miss Minden in Minnesota. He returned to his home in North Dakota on March 26, 1919. On that day the sheriff of Nelson county served summons and complaint on him in the action commenced by the plaintiff for breach of promise to marry. The evidence show's that prior to defendant’s marriage the plaintiff sent Miss Minden certain indecent communications. The evidence also shows that when the defendant was on his way home from Minnesota, after his marriage, he was warned by one or two
In this state it is settled law that an action will lie “for the malicious prosecution without probable cause of a civil suit, although the person of the defendant therein was not arrested or his property interfered with, and although no other special circumstances are shown to exist.” Kolka v. Jones, 6 N. D. 461, 66 Am. St. Rep. 615, 71 N. W. 558. Manifestly, greater injury is done and greater wrong committed by the malicious prosecution without probable or reasonable cause of an inquisition of lunacy. The right to maintain an action for the malicious prosecution of such proceeding is generally recognized and unquestionably exists, especially in jurisdictions where the rule announced in Kolka v. Jones, supra, prevails. See, 1 Cooley, Torts, 3d ed. 344; Kellogg v. Cochran, 81 Cal. 192, 12 L.R.A. 104, 25 Pac. 677; Smith v. Nippert, 16 Wis. 86, 20 Am. St. Rep. 26, 44 N. W. 846; Smith v. Nippert, 79 Wis. 135, 48 N. W. 253; Lock
What has been said disposes of what defendant in his brief has denominated as the issues on this appeal. However, in the written brief, and also in the oral argument, reference was made to certain testimony which it is claimed was erroneously admitted. It is contended that the court erred in admitting testimony relating to the previous relations between the parties. It is contended that this evidence was not admissible in this action. We cannot agree with this contention. An action for malicious prosecution can be maintained only where the action or prosecution complained of has been instituted maliciously. In other words, malice is an essential element, and whatever tends to show the motive or intent of the prosecutor in instigating or' instituting the proceeding complained of is properly admissible. 19 Am. & Eng. Enc. Law, 695. Hence any evidence tending to show that the proceeding or action complained of was instituted for the purpose of accomplishing a personal or private end is admissible. 19 Am. & Eng. Enc. Law, 695.
26 Cyc. 99 says: “Prior transactions occurring, and the personal relations previously existing between the parties to the present action, and feelings of hostility, enmity, and ill-will formerly subsisting may be shown upon the question of malice.” The same rule was announced by this court in Merchant v. Pielke, 10 N. D. 48, 84 N. W. 574. In Allison v. Bryan, 50 Okla. 677, 151 Pac. 610, the supreme court of Oklahoma states the rule thus: “In an action for malicious prosecution, evidence of the previous relations of the parties, which led up to the transaction which caused the prosecution to be instituted, is properly admissible, if it tends to throw any light upon the conduct of the parties, or either of them, whereby the jury might judge the mo
In a dissenting opinion, however, it is stated that the “defendant was asked if he had not been too intimate with his wife before marriage;” and was required to answer such question over objection. The record on which the statement in the dissenting opinion is predicated is as follows: The defendant while being cross-examined under tho statute testified that the plaintiff came to his place during the threshing season of 1918; that at that time his present wife (Miss Minden) was employed as cook in the cook car with the threshing machine then on the place. That upon this occasion the plaintiff stayed over night.
Q. Didn’t she and your present wife have some trouble of whether she (plaintiff) should be permitted to stay in the house?
A. Why I told her she could stay in the house.
Q. And did she stay in the house?
A. Tes.
Q. And you and your present wife slept in the cook caí' ?
A. My present wife did.
Q. And did you sleep there too ?
A. That is my business.
Q. I am asking you, didn’t you sleep there too ?
Mr. Bangs: Objected to as immaterial, incompetent, and irrelevant, and having nothing to do with this case, and improper cross-examination.
By the court: Overruled.
A. My wife and her sister were in the cook car.
*55 Q. My question is, did you sleep there too?
A. Do I liave to answer that question ?
Mr. Bangs: Has that anything to do with it at all?
The Court: I suppose it is hard to draw the line. He is testifying under the statute on cross-examination.
Mr. Cuthbert: It is to show what aroused this woman to commit the acts she did.
The Court: That is what I supposed. . . .
Q. I am asking you didn’t you sleep out there too?
Same objection as set out above, and same ruling thereon.
A. I was in the cook car a while and I was in the barn. I had some-blankets up there and I stayed there until pretty near morning.
In connection with this testimony it should be borne in mind that the defendant testified that upon this occasion, when the plaintiff' slept in the house, she destroyed (smashed) a large quantity of eggs-in the basement and also destroyed some canned fruit. The information for insanity purports to be based upon the alleged acts of the-plaintiff in destroying such eggs and fruit in the threshing season in 1918, and the destruction of the clothing and furniture in March, 1919.
The defendant claimed that the insanity proceeding was instituted' in good faith, upon the advice of the state’s attorney of Nelson county,, and by the action of the commissioners of insanity of Walsh county, after a full statement by defendant of the material facts. Manifestly the situation developed by the examination set forth above had a direct bearing upon the question whether the actions of the plaintiff in destroying the eggs were due to insanity or to a fit of anger. The existence of these facts known to the defendant, and concealed by him from the officers, had a direct bearing upon the question of his good faith in making the charge of insanity, and endeavoring to have the-plaintiff committed to the insane asylum.
Judgment affirmed.
Dissenting Opinion
(dissenting.) The lesson in this case is beware of widows. In tbe summer of life tbe plaintiff, a grass widow, with a boy Arebie of seven, became tbe housekeeper of defendant, an industrious and thrifty farmer. Both were Scotch and their years were nearly tbe same. The lonely winter nights were passed in each other’s company “till twixt the late and early.” The result was what the French call a marriage of convenience. During twenty years, with some intermissions, they lived happily together. Then, as it seems, John found monotony in loving one who was past the age of bearing him an heir. He quickly wooed and won a young lassie who became his wife. The result was an action for breach of promise and a judgment against John for nearly $6,000, which he paid as a penance. But that was not all. At the time of commencing the suit the new wife was assaulted with several threatening letters of a vile and obscene character. John’s home was invaded and turned into a nuisance. It was a clear case of malicious mischief and a misdemeanor. Comp, laws, § 10,050. John called Sheriff Peterson, who viewed the damage and testified thus: The chairs of leather and upholstery were cut in different places with a knife. The cuts were from a half inch to 4 or 5 inches. The davenport or lounge was cut in the same manner. The trunk was filled with dirty clothing and slops. There was a hat box in, the closet and someone had done a job in it. A fur coat was tom and the lining cut. He said to Anton: The woman must he crazy to do such a thing as that. Then, as the sheriff testified, John Anton rode with him to the state’s attorney and he, the sheriff, told the state’s attorney what he had seen in the house. The conclusion was that she should be arrested on a charge of insanity, though John made the statement that he did not see her -do the work and his idea was to have her arrested on a charge of malicious mischief. But on the charge of insanity she was arrested and'imprisoned four days and then discharged by the insanity board. She herself spoke to William Nash concerning the matter and said: I might have been a little off, but I was not crazy. And what she said is probably true. And it may well be true that after an imprisonment or restraint during four days on a spare diet she was sobered, and that when she appeared before the insanity board her mind was not in the same condition as when she committed the mischief. Nothing is more certain than that she
The record evidence covers nearly four hundred pages and shows that from start to finish the trial was conducted as if it were a breach of promise case. On a pretense of showing malice or excusing the mischief, counsel for plaintiff offered evidence showing the amicable relations of the parties and the way they had lived together in harmony, under a promise of marriage, for nearly twenty years. The only purpose of such testimony was to inflame and prejudice the minds of the jurors. And for the same purpose, defendant was asked if he had not been too intimate with his wife before marriage. And against the most strenuous objections the court ruled that defendant must answer the question? It is almost incredible. By Mr. Cuth-bert the purpose of the question was stated thus: “To shoto what a/roused the, woman to commit the acts she did.”
But the woman was not on trial for what she did. It is hard to conceive that such testimony was offered in good faith. Its effect and purpose must have been to influence and prejudice the minds of the jury and to secure an unjust verdict. That is further shown by the mass of irrelevant matter regarding the amours of the plaintiff and the defendant for a period of some twenty years. From the beginning to the end the record of the trial is swollen with such matters. The result is a verdict grossly, fearfully, and monstrously excessive, and it is against a man who has earned his little property by Scotch frugality and hard work. It is tho natural result of a nefarious practice which permits a lawyer to prosecute a damage suit for a contingent fee of 50 per cent and at the same time to practice deception and
The only real question here presented is whether to dismiss the action or to remand it for a new trial. As we think, the action should be dismissed because the evidence clearly shows the plaintiff was the aggressor and defendant had a right to protect himself, his home, and his wife against her wanton depredations. The charge of insanity was made for self-protection and for no other purpose. It was made on the advice of the officers of the law and the advice of the sheriff who had seen the depredations and declared that no sane person would commit the acts she did. It was the mildest charge that could have been made against her. On the charge of a misdemeanor the punishment would certainly have been more severe. The plaintiff has no reason to complain.
Rehearing
On Petition for Rehearing.
Defendant has filed a forceful and able petition for rehearing. We have again reviewed the case, and feel impelled to adhere to our former decision.
We are entirely satisfied that an action will lie for the malicious prosecution, without probable cause, of a proceeding the object of which is to have a person adjudged insane. It has been held that the prosecution of such a proceeding, without probable cause constitutes •cruel and inhuman treatment within the contemplation of the laws relating to divorce so as to afford a ground for a divorce. Reichert v. Reichert, 124 Mich. 694, 83 N. W. 1008; Michels v. Michels, 120 Me. 395, 18 A.L.R. 510, 115 Atl. 161. It would seem that if the baseless prosecution of an insanity proceeding is a wrong of sufficient magnitude to justify the severing of the marriage tics, it ought to furnish a ground for the award of damages. And in our opinion it •constitutes a legal wrong for which the party injured is entitled to be compensated. See-Comp. Laws, 1913, § 7165.
The principal contention advanced in the petition for rehearing is that the court misapplied the rule announced in paragraph two of the syllabus. In the petition for rehearing it is said:
“We have no quarrel with the general principle enunciated by our*59 court in this case, nor with the general principle on the admissibility of evidence relating to prior relations as enunciated by the textbooks and decisions, but we do contend that the evidence of friendly relations existing between the parties in this action was not admissible to prove malice and by no stretch of the imagination could it prove malice.”
As the name implies, malice is an essential ingredient of an action for malicious prosecution, and the authorities are unanimous in holding that there can be no recovery in such action unless it is established that the action or prosecution complained of was instituted maliciously. Existence of malice, however, is not enough to support such action. It must also be shown that the action or proceeding complained of was instituted without probable cause. The plaintiff, of course, has the burden of proving both malice and want of probable cause. Any evidence having a logical tendency to establish, on the one hand, the absence of probable cause, and on the other, the existence thereof, is admissible upon the question of probable cause (19 Am. & Eng. Enc. Law, p. 694) ; and whatever tends to show the motive or intent of the prosecutor in instigating or instituting the proceeding is properly admissible on the question of malice. Id. p. 695. So the plaintiff may introduce evidence tending to show that the defendant by the institution of the action or proceeding complained of sought to accomplish some personal or private end (id. p. 695). And the defendant may adduce any evidence having a logical tendency to rebut the showing made by the plaintiff. He may even testify “as to his motive and that he was not actuated by malice, ill will, or desire to harass the plaintiff in instituting or conducting the proceedings complained of, and that he honestly believed in the plaintiff’s guilt or liability.” Id. p. 695.
Malice need not be shown by direct and positive testimony. It may be established by circumstantial evidence, i. e., inferred from circumstances. “Malice, indeed, is a fact which in the nature of things is difficult if not incapable of positive, direct proof, and must therefore rest on inferences and deductions from facts, for which reason a wide range is permitted in adducing attendant circumstances that tend to throw any light upon the subject.” 19 Am. & Eng. Enc. Law, 695, 696. The malice necessary to sustain an action for malicious
The purported purpose of the complaint made by the defendant was to have an alleged insane person apprehended and incarcerated in the state insane asylum. The purported purpose was not only lawful but commendable. One of the. principal questions in the case is whether the defendant had probable .cause to believe, and whether he honestly believed, that the plaintiff was insane. If he did, of course, he has committed no actionable wrong. If, however, he had no probable cause to, and did not, so believe, then the proceeding was instituted without probable cause, and malice may be inferred from that fact alone. . Kolka v. Jones, supra.
How could the jury pass intelligent judgment upon the motive, or purpose of the defendant in instituting the proceeding, or upon his belief as to the truth of the charge of insanity made by him if they knew nothing of the prior relations between the parties ? Should the action of the defendant be judged by the jury as though he had made the charge of insanity against some strange or unknown woman who, in his absence, had entered his house and committed the acts on which the information in the insanity proceeding was based? To ask the question is to answer it. In order to judge of the mental attitude of the defendant, it was essential that the jury have as much knowledge as possible of any and all facts which had a reasonable tendency to influence his actions. The very existence of the relations which had formerly existed between the plaintiff and defendant, it seems to us, furnished some reason why the defendant might have desired to have the plaintiff incarcerated in the insane asylum, even though he did not believe her to be insane. He had just been sued for breach of' promise to marry. He had just returned with his wife, and they were
As stated in tbe former opinion, in making bis complaint to tbe state’s attorney of Nelson county and to tbe county judge of Walsh county, the defendant made no reference whatever to tbe relations which bad. previously existed between himself and the plaintiff; nor did be inform them of tbe then pending breach of promise suit. In other words, be did not make to them a full and fair statement of all tbe facts within bis knowledge at that time. On tbe contrary facts having a material bearing upon tbe very proposition then under consideration were not related. In view of all tbe circumstances we are not prepared to say, as a matter of law, either that- tbe defendant bad probable cause for instituting tbe insanity proceedings or that be wa,s not actuated by malice in so doing.
Rehearing denied.
Rehearing
(on petition for rehearing). In law there is many a slip which leads to oppression and robbery. This case will serve as an example. According to the decision, it seems the action is based on slips — mere slips — made by the defendant — on slips by his attorneys — on slips by the officers of the law — on slips by the courts— and for such slips, defendant must pay from his hard earnings, $6,000.
This appeal is from a judgment for $6,000, for a breach' of promise. On the pleadings, this case appears to be an action for malicious prosecution, but such were the slips of the law, and the cunning of counsel, that on the testimony, and the argument of the case, it became a second action for a breach of promise. In the first action for breach of promise, plaintiff recovered $6,000, which defendant paid, and in this action, for the same identical cause.
There is a judgment against him for another $6,000. It appears that for twenty year’s prior to the commencement of the action, the plaintiff passed the greater part of her time as the housekeeper and mistress of defendant. Then he married another woman and the plaintiff brought suit for a breach of promise and recovered $6,000, which defendant paid. That was his penance; that was in full settlement of the love affairs, but like a crazy woman, she went to the house of her former lover, cut up the furniture, and turned the house into a nuisance, and wrote scandalous and unprintable letters to the young wife. For that insane procedure, she was arrested on the charge of insanity. The charge was made on the advice of the sheriff, who went to the house of defendant, saw the depredations and declared that no sane woman would be guilty of such conduct. The other officers of the law agreed with him, and so defendant was arrested and was in the custody of the sheriff four days and then discharged. Then this action was commenced, to recover damages for the arrest, but on the trial, it was conducted from start to finish as if it were an action for a breach of promise, and so the first judgment was duplicated. The transcript of the testimony covers 360 typewritten pages, and nearly all pertain to the twenty years of illicit love, and the breach of promise. Defendant was first called as a witness for cross-examination.
Now counsel for defendant moved for a rehearing on two principal grounds:
(1) Because of error in the admission of the mass of irrelevant testimony;
(2) Because of excessive damages given under the influence of passion and prejudice.
In denying a rehearing not a word is said concerning the excessive damages and no attempt is made to justify the admission of the mass of irrelevant testimony. It is true that in the original opinion several eases axe cited to sustain such testimony, but in the motion for rehearing, it is shown that the cases cited have no relevancy. This is probably the first case in all the law books where a verdict has been sustained when based on such a mass of prejudicial and irrelevant testimony. As shown in the petition for rehearing, the only purpose of such love testimony was to inflame and prejudice the minds of the juries and to appeal to their passion and prejudice. Very much do I
