82 W. Va. 623 | W. Va. | 1918
By this writ of error, awarded on the application of plaintiff, Mary Wadkins, to a judgment of the circuit court of Barbour county, setting aside a verdict rendered in her favor, in an action for a malicious prosecution against the defendant J. D. Digman and granting him a new trial, plaintiff asks to have the order of the lower court reversed and judgment entered here upon the verdict.
Defendant’s motion to set aside the verdict was based on the grounds of an alleged variance between the declaration and the proof, and after-discovered evidence. It does not appear from the order on what ground the court acted. It is, therefore, necessary to determine from the record whether any ground existed which would justify setting it aside.
First as to the alleged variance: Defendant’s counsel insist that the warrant offered in evidence, on which plaintiff ivas arrested, is void as charging no offense, varies materially from the declaration, and is, therefore, fatal. Apparently there is a conflict in the authorities as to whether an arrest on a warrant, which is absolutely void for any reason, can be made the basis of an action for malicious prosecution. 18 R. C. L., Sec. 10, page 20. But this court has decided, in the third point of the syllabus in Vinal v. Core, 18 W. Va. 1, that the plaintiff must have been arrested upon a warrant not absolutely void. This question, however, does not arise and is not made a point of decision in this case, for the reason that the warrant in question was valid. Although not very artfully drawn, the warrant does sufficiently charge an offense Tt charges, on complaint of the defendant, “that Mary Wadkins did commit, an offense by making threats and did strike at him with a broom, in 'this that she the said Mary Wadkins on the 16th day of July, 1914, in said county did refuse to let him remove a calf off of the premises where she now lives and did make threats and did attempt to hit him
Defendant insists that probable cause to believe plaintiff guilty of the assault charged existed, and is clearly proven. But the assault charged against plaintiff, if any, was against, defendant and occurred under the following circumstances, according to defendant’s own testimony. He claimed to have purchased a calf from plaintiff, of her son, and paid for it, and went to her house for the purpose of taking the calf away. She forbade him to remove it. Notwithstanding her protest, he enlered her yard and tried to drive the calf out of the yard into the road. Plaintiff, who had a broom in her hand, then went out into the, yard to stop him from driving the calf off, and ordered him to get off her premises, struck at him with the broom and threatened to shoot him if he didn’t get off her place. She was justified in using only such reasonable force as was necessary to expel dependant from her premises. State v. Flannagan, 76 W. Va. 783. If defendant did not leave the premises when he was ordered to go. he thereafter became a trespasser and plaintiff was .justified in using such reasonable force as was necessary to eject him. If she was guilty of using no unnecessary force or violence, she was acting within her rights, and, of course, committed no offense. All these transactions took place in defendant’s presence and he was bound to know them, and in fact did know them, because he testified to them. He is likewise charged with a knowledge of the law and of plaintiff’s dominion over her premises and her right to expel trespassers therefrom. Therefore, he must have known that the alleged, assault with which he charged plaintiff was justifiable, and. hence no violation of the law. It necessarily follows that defendant knew, at the time he caused plaintiff’s arrest, nn cause existed therefor.
Is there anv evidence of malice ^ By legal malice is meant
Defendant filed his own affidavit and the affidavits of two witnesses to prove that, after the verdict had been rendered, he had discovered evidence, which he had not been able to discover before that time by the exercise of reasonable diligence, and plaintiff’s counsel, in their brief, say the court, set aside the verdict for this reason, though it does not appear from the record for what cause it was set aside. However, 'the facts, appearing by these affidavits, do not justify setting aside the verdict. Affiant Ray Haller swears, that about one 'week after the trouble between plaintiff and defendant con-
Affiant Haven Yates swears he was at the mail box, at the gate, near plaintiff’s house when Digman was trying to drive the calf off the premises into the road and saw plaintiff “scare the calf back, draw a broom over J. D. Digman and threaten to strike him with it, and she there said ‘she would knock his damned brains out with it’.” This evidence is of the same character and is .subject to the same objection as that in the affidavit of Haller. Moreover, plaintiff files her own affidavit, denying that she had the alleged conversation with affiant Haller, or that she made use of any words of similar or like import. She swears she had no conversation with him concerning her trouble with Digman; and further
• In our view of the case it is immaterial whether plaintiff struck at defendant with the broom or not, for when she ordered him off her premises, it was his duty to go, and, if he refused to go and persisted in trying to take the calf, she was justified in striking at him with the broom in order to drive him out of her yard. Hence, according to his own testimony, he was bound to know there was no cause for his charging her Avith having committed an assault on him.
Defendant complains that certain instructions given at the request of plaintiff are erroneous, and that it was proper to set aside the verdict for that reason. We have carefully considered the instructions and hardly think it necessary to enter upon a lengthy discussion of them. They are in accordance with the law as herein stated. Defendant’s OAvn admission proves that he was-actuated by an improper motive in procuring plaintiff’s arrest. He had no right to cause plaintiff to be arrested in order to obtain possession of his property; such was a misuse and, therefore, an abuse of the state’s process. If the plaintiff would not surrender possession of the calf, he had a civil remedy. Plaintiff’s third instruction told the jury that if defendant Avas actuated “in. whole or in part’’ by a desire to obtain possession of the calf, he was guilty of malice. This is the law. See authorities cited above. Independent of defendant’s own admission of the improper use of the criminal writ, the jury could have inferred that malice existed, from proof of the want of probable cause. Vinal v. Core, supra.
Having reached the conclusion that there was not sufficient ground for setting aside the A^erdict, it is unnecessary tod inquire whether the court erred in refusing to give certain instructions asked for by plaintiff and in giving certain, others asked for by defendant. The court apparently gave all the instructions asked for by defendant; and plaintiff obtained a verdict in spite o.f the refusal of some of her in
The judgment setting aside the verdict and awarding a new trial will be reversed, and judgment will be entered here for plaintiff upon the verdict, with costs.
Reversed and judgment rendered.