Huber v. Zeiszler

Grace, J. The action is one for malicious prosecution. The complaint alleges that on the 17th day of July, 1915, the defendant maliciously and without probable cause falsely charged the plaintiff herein with the crime of adultery, before a justice of the peace within and for the county of Mercer, and. also swore to a criminal complaint before such justice, charging the same crime. Such complaint further shows that such charge was false, and that the defendant knew it was false at the time he made the complaint. The plaintiff further shows his arrest by reason of the making of such complaint and the issuance of such warrant. That, when the preliminary hearing was had, the plaintiff was bound over to the district court, and was tried by a jury, by whom he was acquitted. Plaintiff alleges damages by reason of money expended in employing counsel to defend him in said action, and the payment of witness fees, and alleges general damages in the sum of $7,500, and makes demand for judgment in the sum of $8,350. The answer admits the arrest of the plaintiff by’reason of the warrant, and states further by way of defense the binding over of the plaintiff upon the preliminary hearing. Defendant alleges further [560] by way of defense that he had good grounds to believe the plaintiff guilty of the crime charged, and in the manner charged in the complaint. Further by. way of defense defendant alleges that, before the filing of such complaint and the issuance of such warrant, defendant consulted counsel and stated to them fully and fairly all facts and -circumstances known to him in relation to such charge, and that such .attorneys advised the defendant that he had probable cause for commencing such criminal proceedings. Trial was had in the district court of Mercer county of all the issues in the case, and the jury .returned a verdict in favor of the plaintiff for the sum of $1,850, and the costs and disbursements of the action taxed at $170.90, in all $2,020.90. Motion for a new trial was made, which was based upon the alleged passion and prejudice of the jury .and the excessiveness of the verdict, and upon other grounds. An •order was made denying the motion for a new trial, and judgment was ■entered. From the order denying a new trial and from the judgment the defendant appeals and assigns four specifications of error. First, that the court erred in denying the motion of the defendant for a new trial of the action, and in refusing to order a new trial of the action. The granting or refusing to grant a new trial rests largely in the ■discretion of the trial court, and unless there is plain abuse of such ■discretion, its order in such matter will not be disturbed. There .appears to be no abuse of such discretion in this case. As to the second assignment of error, which is that the damages awarded by the jury .are so excessive as to appear to have been given under the influence of passion and prejudice, we conclude there is no merit in such assignment of error. There is nothing in the record to indicate any passion or prejudice on the part of the jury, and the verdict is not •excessive under all the circumstances of the case. As to the third assignment of error, which claims that the evidence is insufficient to justify the verdict, we are of the opinion that the verdict is amply sustained by the evidence in the case. There was sufficient evidence in the case to support the allegations of the complaint, and there was ■conflicting evidence as to certain material matters connected with the case; and it was the province of the jury to pass upon all disputed questions of fact presented to them, which they did, and returned a verdict in favor of the plaintiff, which is amply supported by the [561] testimony in the case. The fourth assignment of error, relating to the failure of the court to instruct the jury that the fact that the plaintiff had been held to answer the charge of the criminal action in district court after a preliminary hearing before a justice of tbe peace was prima facie evidence of the guilt of the plaintiff, is also without merit. It does not appear that the defendant requested any such instruction, and nondirection, unless it amounts to misdirection, in a matter of law in a civil case, is not reversible error. If defendant had desired any instruction, all he needed to do was to call the matter to the attention of the court, or prepare a written instruction himself upon the subject on which he desired the instruction of law by the court, and present it to the court and request the court to give such instruction. If the court refused to give such instruction, and it was an instruction which could or might have been properly given, or if the failure to give 'it in any way materially adversely affected defendant’s cause, the defendant could then present to this court the failure of the court below to give such instruction as a ground for reversible error. Otherwise, if the court fails to explain or expound the law to the jury relating to some of the subject-matter of the action, and the defendant makes no request for instructions upon such subject, the defendant is not in position to complain, and cannot afterwards in the appellate court successfully contend that the failure of the trial court to give such instruction is reversible error. Thompson on Trials, vol. 2, § 2338, says: “In civil cases the judge is not bound to give his opinion to the jury upon any matter of law arising upon the evidence unless requested to do so by one of the parties. Where no such request is preferred, the presumption is that the jurors are acquainted with the rules of the law applicable to the case, and the failure to instruct them cannot be assignment for error.” Our court passed upon the same subject in the following cases: Buchanan v. Occident Elevator Co. 33 N. D. 346, and 351, 157 N. W. 122; Halverson v. Lasell, 33 N. D. 613, 157, N. W. 682; McGregor v. Great Northern R. Co. 31 N. D. 471, 154 N. W. 261; State v. Haynes, 7 N. D. 353, 75 N. W. 267. It is not necessary to discuss any of the testimony in this case. All such testimony came before the jury, and was weighed by them in arriving at their verdict. They were [562] the exclusive judges of all the facts and the credibility of tbe witnesses, and tbeir judgment is conclusive upon such matters. The judgment is affirmed, witb costs.