Pickles v. Anton

Pee Curiam: 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? — 51 — “Ts the verdict for $6,000 in favor of the plaintiff excessive?” 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 — 52 — persons that the plaintiff was watching the trains for his return and that dse had better be on his guard as she would likely do him or his wife some harm. On arriving at his home the defendant was served with the papers in the breach of promise suit. After being so served on entering his house he found that certain clothing belonging to his then wife had been thrown into a trunk and slops poured on them; also, that the upholstery in certain chairs and a davenport had been cut, and he was informed by one of his laborers that these acts had been committed by the plaintiff. The defendant thereupon went to see the state’s attorney of Nelson county and asked that the defendant be arrested for the acts that she had committed. Tie admits that in his talk with the state’s attorney he said nothing whatever about the re-ra'tions that had existed between him and the plaintiff throughout the years nor does it appear affirmatively that he informed the state’s attorney of the breach of promise suit which had been brought and was then pending. After some discussion it was decided that the defendant should go and file an information before the commissioners of insanity of Walsh county charging the plaintiff with being insane. This he subsequently did. The defendant admits, however, that in presenting the facts to the county judge of Walsh county he said nothing whatever about the relations that previously existed between him and the plaintiff; nor did he say anything about the broach of promise suit which had been brought against him. 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 — 53 — enour v. Sides, 57 Ind. 360, 26 Am. St. Rep. 58. In tbis case the court submitted to the jury for determination the questions of malice and prohable cause. No exception was taken to any of the instructions, and there is no contention that they were in any manner erroneous. In our opinion it cannot be said as a matter of law either that the plaintiff had no cause of action, or that the verdict is excessive. While not controlling, it is significant that defendant’s counsel did not move for a directed verdict. Neither did he move for a new trial on the ground that the jury under the influence of passion or prejudice had awarded excessive damages. 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 — 54 — tives that actuated them.” See, also, Franczak v. Plotzki, 178 Ill. App. 279; Shanks v. Robinson, 130 Ind. 479, 30 N. E. 516; Clark v. Folkers, 1 Neb. (Unof.) 96, 95 N. W. 328; Bruington v. Wingate, 55 Iowa, 140, 7 N. W. 478; Merchant v. Pielke, 10 N. D. 48, 84 N. W. 574. We are satisfied that it was entirely proper for the plaintiff to show the prior relations between the parties. It is indeed difficult to understand how the jury could have understood the facts in the case or been in any position to intelligently determine the motive which actuated the defendant in bringing the insanity proceeding unless they were informed of the relations which had existed between the parties before the insanity proceeding was instituted. This disposes of the errors assigned and argued. 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. Grace, Ch. J., and Christianson, Birdzell and Bronson, JJ., concur.