Redahl v. Stevens , 64 N.D. 154 ( 1933 )

On appellant's petition a rehearing was ordered. On reargument appellant urged that in the opinion filed no consideration was given to certain of his exceptions to the charge of the trial court.

As stated in the opinion, appellant in his specifications of error merely recited generally that the court had erred in its instructions, and quoted seriatim a large portion (seven paragraphs, consisting of 106 lines and dealing with several distinct subjects) thereof to which he took general exceptions. He did not point out the particular parts of the instructions which he claimed to be erroneous. Generally his contention was that the instructions were erroneous because of failure to define malice and probable cause; because they charged with respect to the defense that the prosecution was begun on advice of counsel that the burden was on the defendant to establish this defense; and because they in substance charged that proof of acquittal by the justice amounted to proof of want of probable cause. These contentions were disposed of in the opinion heretofore filed. The further contention is now made, however, that the instructions were erroneous in other respects, particularly as regards the matter of advice of counsel.

We have considered the whole instruction and while it is in some respects uncertain and contradictory, yet we do not believe that the jury were misled thereby. The instructions must be considered as a whole. And the court did specifically charge: "You are instructed that if you find that the defendant prior to the institution of the proceedings which are alleged to have been malicious he in good faith consulted a competent attorney, to whom he made a full and accurate statement of all the facts, and that the prosecution was instituted in good faith in reliance on the advice received by the defendant from the attorney so consulted, then and in that event you must find for the defendant in the two malicious prosecution cases submitted in this action." This was a proper statement of the law given at the request of the appellant. With respect to those other portions of the charge which the appellant now further argues are erroneous, it is sufficient to say they were not definitely and specifically pointed out as objectionable nor was error on account thereof urged as a ground therefor on motion for a new trial. So, if erroneous, the error must here be considered as waived. See Isensee Motors v. Godfrey, 61 N.D. 435, 238 N.W. 550, and cases cited. See also Pease v. Magill, 17 N.D. 166, 115 N.W. 260 (decided prior to the 1913 practice act now in effect); Hedlun v. Holy Terror Min. Co. 16 S.D. 261, 92 N.W. 31; 3 C.J. 1376, and cases cited.

Appellant also insisted on reargument that the instructions were prejudicially erroneous in that the jury were misled thereby with respect to the effect that might be given to the finding of the justice of the peace that the plaintiff was not guilty of the charge that was laid against him in the former action by the defendant. In that behalf appellant insists that thereby the jury were instructed that proof of acquittal by the justice amounted to proof of want of probable cause. As we read the instruction at which appellant directs this challenge — it is quoted in the opinion heretofore filed — the jury were told that in order to enable the plaintiff to recover he must establish that he had been prosecuted criminally by the defendant; that the prosecution had terminated in his favor; and that such prosecution was malicious, without probable cause, and resulted in his damage. As said in the former opinion, that part of the instruction which referred to the trial and finding of not guilty informed the jury that the prosecution in that case must have been terminated in favor of the plaintiff in the instant case. It is true that the jury were not told that they should consider the evidence with respect to the termination of the former trial for this purpose only. Nevertheless, that was the effect of the instruction. The jury could not have understood it otherwise. And there was no request for any other instruction touching the matter.

The opinion heretofore handed down is adhered to.

BIRDZELL, Ch. J., and CHRISTIANSON, BURR and BURKE, JJ., concur.