116 A. 436 | N.H. | 1921
The evidence tended to prove the following facts. The plaintiff and defendant had been engaged in farming operations for some two years prior to the alleged slander. On the tenth of April, 1919, the defendant came to the plaintiff's house, when the plaintiff was away in New York on business, and demanded that the plaintiff's wife give him a note for one thousand dollars, claiming that the plaintiff owed him that amount, although he had never rendered the plaintiff any statement showing such, or any, indebtedness. The plaintiff's wife denied the indebtedness, and said she *212 would go over the books, and show him. He answered that he didn't want any books. Then she told him he would have to wait until her husband came home. He said he didn't want to see him, in fact he had rather see him in Orford cemetery. Then the defendant stated in substance that the plaintiff went to New York, not on business, but to see another woman, and that statement is the foundation of the present suit.
The next day the defendant came again and told the plaintiff's wife if she didn't give him a note for a thousand dollars he would go to Woodsville, and put them in trouble. She refused, and he immediately ordered suit brought. Subsequently the plaintiff commenced an action against the defendant relative to the same transactions. There was evidence that the attachment made by the defendant in his suit was excessive, and other evidence tending to show its malicious character. This evidence, as it appeared that the litigation was determined in favor of the plaintiff, authorized a finding that almost contemporaneously with the utterance of the alleged slander the defendant without probable cause brought an unfounded suit against the plaintiff, and would furnish a foundation for a suit for malicious prosecution.
If the fact of a malicious prosecution by the defendant against the plaintiff was competent, the evidence necessary to establish that fact was necessarily admissible. To maintain such an action the plaintiff in such a suit must prove the termination in his favor of the suit alleged to be malicious. Cohn v. Saidel,
"In actions of slander, evidence, of the repetition of the same words, or of other words and acts of the defendant, tending to show his malice in uttering the words laid in the declaration, was admissible, whether such words or acts were themselves actionable or not." Severance v. Hilton,
It was competent for the plaintiff to combat such inference by evidence of the fact. The evidence of the termination of the suit was competent. The jury might give greater weight on the question of malice to the fact, if they so found, that the suit was brought without probable cause, than they would to the fact of an excessive attachment made in a good cause of action. In Cohn v. Saidel, supra, the plaintiff in the original suit became nonsuit. It was held *214
that the fact of nonsuit was competent and necessary because prior termination of the suits complained of was a fact necessary to be proved; but that the mere fact of voluntary nonsuit did not authorize the inference in a subsequent suit for malicious prosecution that the suit in which it was entered was brought without probable cause. In this case the jury were instructed that "The outcome of the other lawsuits in the plaintiff's favor is not conclusive in showing malice on the defendant's part." There was no exception to the instruction or request to modify or limit it. It is now too late for the defendant to claim the effect of the evidence was inferentially too broadly stated. The requirement that the jury before giving any effect to the evidence should find on all the evidence that the suit was brought in bad faith renders it improbable they were misled by the instructions. But the question, whether the court should have told the jury that the evidence of the termination of the suit was not evidence of malice instead of telling them it was not conclusive, not having been raised before the case was submitted to the jury, is not now open. Nadeau v. Sawyer,
In the opening, plaintiff's counsel referred to the prior litigation and its result, whereupon the defendant objected and excepted to any reference to that litigation and the outcome of it. The evidence was admitted under the same objection and exception. The record before the court contains no further explanation of the exception or request to limit it. The evidence was competent as admitted in connection with other evidence tending to establish a malicious prosecution, and the contention now made that this particular piece of evidence did not of itself tend to prove want of probable cause or malice does not appear to have been brought to the attention of the court. The defendant cites Palmer v. Dimick,
Exception overruled.
All concurred. *215