Majority
p. 935English v. Major. (Supreme Court, General Term, Fourth Department. February, 1891.) Argued before Hardin, P. J., and Martin and Merwin, JJ.
Headnote
Malicious Prosecution—Probable Cause—Hearsay Evidence.In an action for malicious prosecution defendant may testify as to communications made to him by third persons as tending to show that he had reasonable grounds for believing that plaintiff was guilty of the offense with which defendant charged her.
Appeal from circuit court, Onondaga county.
Action by Mary English against William Major for malicious prosecution. On the 26th day of July, 1889, upon the complaint of the defendant, charging the plaintiff with the offense of poisoning animals, the plaintiff was arrested, taken before a magistrate, and on the 3d September, 1889, was tried and acquitted. Thereupon this action was commenced. From a judgment entered on a verdict in favor of the plaintiff for $65, and from an order denying a motion on the minutes for a new trial, defendant appeals.
George Barrow, for appellant. M. E. & G. W. Driscoll, for respondent.
Upon the trial of this case, the plaintiff gave evidence showing, in effect, that she was innocent of the charge made against her by the defendant. She then rested, and defendant made a motion for a nonsuit, which was denied, and exception taken. The plaintiff had not shown a want of probable cause, and had not made a case for recovery. Thaule v. Kreheler, 81 N. Y. 433 . The.defendant, however, instead of relying on his exception, proceeded with evidence upon his part, and thereafter the plaintiff gave further evidence; so that, at the close of the evidence, a case was probably presented for the action of the jury, within the rule laid down in Heyne v. Blair, 62 N. Y. 19 . The case was, however, a close one, and in that view some rulings upon evidence, about which the defendant complains, are to be
p. 936
more closely considered. The plaintiff and defendant occupied adjoining village lots. The defendant kept chickens, and upon the evening of July 24, 1889, quite a number of them were found dead along the line between the parties. The charge against plaintiff was that she had thrown poison upon the ground adjacent to the line, with the intent to poison the chickens, and which they had in fact eaten. The defendant was called as a witness on his own behalf, and testified that he returned home that evening about 6 o’clock, and found his wife crying. He was then asked to state what occurred that evening in reference to conversation with his wife, and in reference to chickens. The conversation was objected to by the plaintiff as hearsay, and incompetent and inadmissible, and was excluded, and exception taken. The defendant further testified that the next morning he employed one McLaughlin to investigate the matter; that the latter did so, and informed defendant that he found meal or something of that kind along plaintiff’s fence, and also told defendant that he had a conversation with the plaintiff. The defendant was then asked the question: What did he state was the conversation which he had had with Mrs. English? This was objected to as hearsay, and excluded, and exception taken. In Miller v. Milligan, 48 Barb. 30 , 47, it is said that the real question is whether the defendant had reasonable ground to believe that the plaintiff was guilty of the charge, and this belief may be founded upon facts within the knowledge of the party, or upon information derived from other persons. In 2 Addison on Torts (Dudley & B. Ed. 766) it is said that, in order to show good faith on the part of the defendant, it is competent for him to prove any communication that may have been made to him prior to the commission of the grievance, to show the impression made on his mind, and the materials he had before him in forming an opinion. A like view was taken in Bacon v. Towne, 4 Cush. 217 , 240, and in Lamb v. Galland, 44 Cal. 609 . Both of the communications excluded very evidently related to the matter in controversy, and were made to the de fendant before he commenced any proceedings against the plaintiff. The record shows that McLaughlin was afterwards called as a witness by the defendant, and testified generally that he stated to defendant the conversation he had with the plaintiff. This did not cure the error, if it was one, in not permitting the defendant to state it,' especially as the credibility of McLaughlin was attacked. The defendant had a right to give his own testimony on the subject. We think the rulings above referred to were not correct, and that, as the case stands, they are of sufficient importance to call for a new trial. Judgment and order reversed on the exceptions, and a new trial ordered; costs to abide the event. All concur.
Cases cited
- Heyne v. Blair 62 N. Y. 19 p. 935
- Miller v. Milligan 48 Barb. 30 at 47 p. 936
- Lamb v. Galland 44 Cal. 609 p. 936