VOLUME 155 TUCKER v. BARTLETT. (No. 19353.) (Supreme Court of Kansas. Feb. 12, 1916.) (Syllabus by the Court.) 1. MALICIOUS PROSECUTION 24-PROBABLE CAUSE-PRIMA FACIE EVIDENCE. In an action for malicious prosecution, the fact that the plaintiff, having been accused of a felony, was discharged upon a preliminary examination before a justice of the peace, may constitute prima facie evidence of a want of probable cause for his arrest. [Ed. Note.-For other cases, see Malicious Prosecution, Cent. Dig. 88 49-55; Dec. Dig. 24.] - 2. MALICIOUS PROSECUTION 71 SUBMISSION TO JURY-SUFFICIENCY OF EVIDENCE. The evidence held sufficient to warrant submitting the case to the jury. [Ed. Note. For other cases, see Malicious Prosecution, Cent. Dig. §§ 160-167; Dec. Dig. ~~71.] 8. MALICIOUS PROSECUTION PROBABLE CAUSE-BELIEF. 20-DEFENSE The fact that one who caused the arrest of another upon a criminal charge believed that probable cause existed therefor does not necessarily exempt him from liability for malicious prosecution. [Ed. Note.-For other cases, see Malicious Prosecution, Cent. Dig. §§ 26-28; Dec. Dig. —20.] 4. MALICIOUS PROSECUTION 27 KNOWLEDGE OF INSTIGATOR. In order for a prosecution to be malicious it is not essential that the instigator should have known his act to be illegal. [Ed. Note. For other cases, see Malicious Prosecution, Cent. Dig. § 60; Dec. Dig. 27. 5. TRIAL 296-HARMLESS ERROR-INSTRUC TIONS. An instruction implying that what constitutes probable cause is a question of fact held not to be a ground of reversal, because accompanied by a full statement of the facts necessary to be shown in the particular case in order to justify a finding on the subject. [Ed. Note.-For other cases, see Trial, Cent. Dig. 88 705-713, 715, 716, 718; Dec. Dig. 296.] Appeal from District Court, Sheridan County. Action by Joe Tucker against Wirt Bartlett. From a judgment for plaintiff, defendant appeals. Affirmed. H. O. Caster, of Oberlin, for appellant. W. H. Clark, of Hoxie, and S. N. Hawkes, of Topeka, for appellee. MASON, J. Wirt Bartlett caused the arrest of Joe Tucker upon the charge of setting fire to his barn. A preliminary examination was held before a justice of the peace, and Tucker was discharged. He brought an action against Bartlett for malicious prosecution, and recovered a judgment, from which this appeal has been taken. [1] 1. The defendant maintains that there was no evidence either of the want of probable cause or of malice. The weight of authority supports the rule that the discharge of an accused by an examining magistrate is prima facie evidence of the want of probable cause for his arrest. Note, 64 L. R. A. 474, 481; note, 3 Ann. Cas. 112. This court has held that a finding by the magistrate that a complaint was made maliciously and without probable cause is not admissible in an action for malicious prosecution. Farwell v. Laird, 58 Kan. 402, 49 Pac. 518. But that is a different question, although doubtless closely related. The case cited is based upon the principle that judgments are not admissible against strangers as evidence of the facts on which they rest. That rule, however, is subject to some exceptions. Trust Co. v. Railroad Co., 93 Kan. 340, 348, 144 Pac. 210. The fact that upon a preliminary examination an accused is held to answer the charge against him is accepted as prima facie evidence of the existence of probable cause for his prosecution. Ross v. Hixon, 46 Kan. 550, 26 Pac. 955, 12 L. R. A. 760, 26 Am. St. Rep. 123. We think in view of the general practice the discharge by the justice of the peace should be regarded as tending to show the want of probable cause, and therefore as being sufficient to place upon the defendant the burden of showing its existence. [2] 2. The defendant relied largely upon evidence that two bloodhounds were put upon a trail at the barn, and followed it to the plaintiff's home. Just what the dogs did, and what inference could reasonably have been drawn from their conduct, were matters of proof, and it cannot be said that the facts in that regard were conclusively established. Moreover, the defendant shown to have had knowledge that the plain For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes was tiff claimed to have been at church at the time of the fire,. and there was room for an inference that he had not made reasonable inquiry to learn the truth in that regard prior to causing the arrest. Testimony was given of statements made by the defendant that he would hate to send an innocent man to the penitentiary, and that he was surprised at the action of the dogs, as he had not previously suspected the plaintiff. This evidence tended to show the absence of mal ice, but cannot be said to be necessarily controlling. The defendant was advised in his course by competent attorneys, but the jury specifically found that he had not made a full disclosure to them of the known facts. We conclude that the case was rightly submitted to the jury. [3] 3. A special finding was also made that the defendant, at the time he instituted the prosecution against the plaintiff, believed that he had probable cause for so doing. His belief on this subject, however, is not the determining question, for he may have had an entirely mistaken idea as to what constituted probable cause. "It is not material, in an action against him [a defendant] for malicious prosecution, whether he believed that probable cause existed in a legal sense, unless as bearing upon the question of malice.' Michael v. Matson, 81 Kan. 360, syl. par. 2, 105 Pac. 537, L. R. A. 1915D, 1. The vital question was whether the defendant upon reasonable grounds believed that the plaintiff had set fire to his barn. Proof that a person charged with assault and battery had acted in self-defense would require a decision in his favor, but a finding that he had believed he was acting in self-defense would not have that effect. [4] 4. Complaint is made of this language in an instruction: "Whatever is done purposely, if it be at the same time wrongful, and is done without just cause, is maliciously done." This is substantially the same as was said in an instruction approved in Leicester v. Hoadley, 66 Kan. 172, 71 Pac. 318, 65 L. A. 523: R. "A malicious act is ‘an unlawful act done intentionally, without just cause or excuse.' 66 Kan. 174, 71 Pac. 319 [65 L. R. A. 523]. fore no error was committed in this regard. [5] 5. The defendant maintains that the judgment should be reversed because the jury were told that: "Probable cause is such reasonable grounds as will cause in the mind of an ordinarily careful and prudent person an honest belief in the criminal guilt of another." been held to be erroneous because it treats Standing by itself such an instruction has the question of what constitutes probable law. Michael v. Matson, 81 Kan. 360, 105 cause as one of fact, instead of as one of Pac. 537, L. R. A. 1915D, 1. But as indicated in the case cited the objection may be reof what specific facts under the circummoved by "a clear and accurate statement stances of the particular case would, if found to exist, be sufficient under the law" to constatement was given in the present case, so stitute probable cause. Syl, par. 1. Such a that the instruction is not open to the objection urged. The judgment is affirmed. All the Justices concurring. GARRETT et al. v. BEERS. (No. 19912.) (Supreme Court of Kansas. Feb. 12, 1916.) (Syllabus by the Court.) 1. VENDOR AND PURCHASER 218-TRESPASS -RIGHT OF ACTION-"OWNER." and has entered into possession under a contract Where a plaintiff has acquired a town lot of purchase, he is the owner of it so far as concerns his right to maintain an action for damages to the property (citing Words and Phrases, Owner). [Ed. Note.-For other cases, see Vendor and Purchaser, Cent. Dig. § 456; Dec. Dig. 218.] 2. WATERS AND WATER COURSES 171-DrVERSION OF WATER-FLOODS-"ACT OF GOD." An "act of God" as known in the law is reasonable human foresight, prudence, diligence, an irresistible superhuman cause, such as no and care can anticipate and prevent. [Ed. Note.-For other cases, see Waters and Water Courses, Cent. Dig. §§ 216-222; Dec. Dig. 171. First and Second Series, Act of God.] 3. WATERS AND WATER COURSES 171-DiVERSION OF WATER-INADEQUACY OF CHANNEL-ACT OF GOD." A flood caused by a heavy and protracted The sentence objected to was preceded by rain no greater than had fallen "many a time this: before" within the duration of a man's experi "Malice in the legal sense consists in the will-ence is not such "an act of God" as will excuse ful doing of an unlawful act, without a just cause or excuse for the doing it." A knowledge that the act in question is wrongful or illegal is sometimes included as one of the elements in a definition of malice, as the word is used in this connection. 26 into a new channel which is inadequate to carry one who changes the natural course of a stream off its waters without damage to neighboring property. WIFE'S [Ed. Note.-For other cases, see Waters and Water Courses, Cent. Dig. §§ 216-222; Dec. Dig. 171.] Cyc. 49. But if one intentionally does that 4. HUSBAND AND WIFE 146 PROPERTY-LIABILITY OF HUSBAND. which the law condemns, the circumstance Although the title to property may be vestthat he is not aware of such condemnationed in a wife, her husband may subject himself does not affect the legal quality of the act. to liability as its owner by acts of dominion and The definition given by the trial court is [Ed. Note.-For other cases, see Husband and substantially that approved by the author- Wife, Cent. Dig. 88 556-560; Dec. Dig. ities. Note, 21 Ann. Cas. 756, 758. There- | 146.] control over it. 5. HUSBAND AND WIFE 146-PROPERTY OF fendant accordingly. The defendant appeals WIFE-DIVERSION OF WATER-LIABILITY OF and assigns error: (1) In overruling defendHUSBAND AS OWNER. Where a husband's business firm contributed a large sum of money towards the purchase of a tract of land and the husband joined in platting it as a city addition, paid the taxes from year to year, changed the course of a stream which flowed through it, advertised lots in the addition, sold such lots and received payments therefor and gave receipts in his own name, he may be liable as owner for the negligent manner of changing the stream and its consequences, although the title to the property was taken and held in the name of his wife. [Ed. Note. For other cases, see Husband and Wife, Cent. Dig. §§ 556-560; Dec. Dig. 146.] 6. WATERS AND WATER COURSES 171-DIVERSION OF STREAM ADEQUACY OF NEW CHANNEL. Where for his own purposes the owner of land changes the course of a stream, he must use due care to provide the stream with a new channel of sufficient capacity to carry off, not only the ordinary flow of water, but also such high waters as may reasonably be anticipated from heavy and protracted rains, and which the old channel was capable of carrying away without damage to neighboring property. [Ed. Note.-For other cases, see Waters and Water Courses, Cent. Dig. §§ 216-222; Dec. Dig. 171.] Appeal from District Court, Wyandotte County. Action by Cora Garrett and another against H. M. Beers. From a judgment for plain tiffs, defendant appeals. Affirmed. Glenn Donaldson, of Kansas City, Mo., and T. F. Railsback, of Kansas City, Kan., for appellant. David F. Carson, C. L. Peterson and William Drennan, all of Kansas City, Kan., for appellees. DAWSON, J. The appellees brought this action in the district court of Wyandotte county against the appellant in which they alleged their ownership of a certain lot in a suburb of Kansas City; that the defendant for long prior to May, 1910, had owned certain lands known as Spring Valley addition adjacent thereto on the west; that prior to May, 1910, there was a running stream which flowed through the defendant's lands and along the west side of the plaintiffs' lot; that the defendant carelessly and negligently filled up the channel of the stream so that it flowed directly east to plaintiffs' lot and away from its natural channel, and that in May, 1910, the waters of the stream flowed over the plaintiffs' lot and damaged their building, fences, household goods, and clothing to the extent of $400, and permanently depreciated their property in the sum of $600. They asked judgment for $1,000. Defendant's answer was a general denial. The jury made special findings of fact, and awarded damages to plaintiffs in the sum of $475. The court overruled defendant's motion for a new trial upon condition that plaintiffs would remit $200 on the verdict. This the plaintiffs did, and judgment was rendered against de ant's demurrer to the evidence; (2) in refusing certain instructions; (3) in overruling defendant's motion for judgment; and (4) in refusing judgment on the special findings. [1] 1. It is urged that the demurrer should have been sustained because the plaintiffs were not the owners of the property. There can be no cavil about their ownership of the household goods and clothing. Touching their ownership of the realty, it was shown that the plaintiffs had bought the land and entered into possession under a contract of purchase in 1907, although they did not receive a warranty deed to the realty until October, 1910, some months after the damages alleged. Ordinarily one who buys real estate and enters into possession under a contract of purchase is the owner of it against all comers, excepting possibly the vendor holding the legal title, and may maintain an action as owner for damages to the property. St. L. L. & D. Rld. Co. v. Wilder, 17 Kan. 239, 240, syl. par. 6; Mooney v. Olsen, 21 Kan. 691; Burke v. Johnson, 37 Kan. 337, 15 Pac. 204, 1 Am. St. Rep. 252; Goodrich v. Com m'rs of Atchison Co., 47 Kan. 355, 361, 27 Pac. 1006, 18 L. R. A. 113; Christy v. Rich olson, 48 Kan. 177, 29 Pac. 398; Mulvane v. Lumber Co., 56 Kan. 675, 44 Pac. 613; Steele v. Dye, 81 Kan. 286, 290, 105 Pac. 700; Banchor v. Proctor, 88 Kan. 510, 129 Pac. 526; Civ. Code, § 25 (Gen. St. 1909, § 5618); 25 Cyc. 1549; 6 Words and Phrases, 5134. [2, 3] Defendant also contends that the waters which flooded plaintiffs' property constituted "an act of God." An "act of God" as known in the law is an irresistible superhuman cause such as no ordinary or reasonable human foresight, prudence, diligence, and care could have anticipated and prevented. 1 Cyc. 758. It is usually applied to convulsions of nature, like earthquakes, unprecedented floods, violent winds, tempests, and droughts. 1 Bouvier, 79. There was testimony that the May flood in 1910, which caused the damage, was not unprecedented; that "many a time" such heavy rains had fallen before. Clearly this was a question for the jury. The court's instructions fully covered the point, and the demurrer was properly overruled. [4-6] 2. It is next urged that defendant was entitled to a peremptory instruction that the jury should return a verdict in his favor, on the ground that he was not the owner of the property upon which the new channel was dug and which carried the flood waters on the plaintiffs' lot and destroyed their property. While the fee was held by the defendant's wife, much of the evidence tended to show that his business firm advanced a large sum of money for its purchase; that he had (No. 19906.) Feb. 12, 1916.) WELLIVER v. CLARK. caused the change to be made in the channel of the stream; that he participated in platting the land; that he paid the taxes, advertised the platted lots for sale, sold lots, received payments, and gave receipts in payment for lots, directed workmen in filling the 1. TRIAL 295-HARMLESS ERROR-INSTRUCold channel and in making the new channel. The defendant's ownership could not have been settled by a peremptory instruction to the jury under this state of the evidence. 3. Nor can it be doubted that plaintiff sufficiently alleged, and that their evidence tended to prove, actionable negligence. If the new channel had been adequate to carry the flood waters, plaintiffs would not have been damaged. As the old channel flowed, their property, real and personal, would have been above, or chiefly above, the point where the waters left defendant's land. There was some evidence that the flood waters which did the damage came from another direction and not from defendant's land. That was only a question for the jury. TIONS. Rule followed that when the instructions, taken as a whole, are not misleading to the jury and are fair to a party, he cannot justly complain of an inaccurate expression now and then found in such instructions. [Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 703-717; Dec. Dig. 295.] 2. APPEAL AND ERROR 1005-VERDICT-ExCESSIVE RECOVERY-EVIDENCE. Evidence examined, and no basis found for holding the verdict excessive. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 3860-3876, 3948-3950; Dec. Dig. 1005.] Appeal from District Court, Sedgwick County. Action by James Welliver against M. R. Clark. From a judgment for plaintiff, defendant appeals. Affirmed. Dale, Amidon & Madalene, C. R. Sowers, and S. A. Buckland, all of Wichita, for appellant. Adams & Adams and E. E. Enoch, all of Wichita, for appellee. WEST, J. The parties had a controversy over an article of household furniture, a table, which the defendant was attempting to take away from plaintiff's sister, and the defendant struck the plaintiff twice with a claw hammer, once in the face and once on the head. This action for damages followed, 4. But it is said that the jury found specially that the waters which did the damage were flood waters. But as the flood waters were wont to flow before defendant changed the channel, they could do no damage to plaintiffs. When he changed the channel, he should have taken into account the capacity needed to carry off the probable volume of waters in a freshet. This, according to some of the testimony, he did not do. Nor can it be fairly said that the water was all surface water. Some of the evidence showed that the old channel, colloquially known as the "Sea Serpent," was a living stream with nat-resulting in a judgment for $1,000. The deural springs in its course, and that men brought their horses there for water. Rait v. Furrow, 74 Kan. 101, 85 Pac. 934, 6 L. R. A. (N. S.) 157, 10 Ann. Cas. 1044; Manufacturing Co. v. Bridge Co., 81 Kan, 616, 106 Pac. 1034, 28 L. R. A. (N. S.) 156; Roland v. Railway Co., 82 Kan. 546, 108 Pac. 808. Objection is made that the evidence did not warrant the jury's special finding that the defendant was the "joint owner" of the property. No hypercritical interpretation should be given to this language. Obviously the jury sought for a practical term to characterize the defendant's ownership or interest in the property, taking into account the fact that the fee was vested in his wife, and that under the evidence and the court's instructions the defendant also had such interest in and dominion over the property as to rise to the dignity of ownership. fendant appeals, and contends that the verdict and judgment are contrary to the law and against the evidence for various reasons, amounting substantially to the complaint that the court erred in its instructions, and in its rulings on evidence, and, finally and chiefly, that the verdict was excessive. [1] The instructions were long, and, taken as a whole, very fair to the defendant, and he is not justified in picking out an inaccurate expression here and there for criticism. The complaints covering the admission of evidence we find to be without substantial basis. [2] In presenting his views of the excessive character of the verdict, defendant's counsel in their brief say that they believe this court should render judgment for $76 compensatory damages, and that the plaintiff be required to remit the remainder, less costs. This would seem to eliminate all other questions. Reviewing this case in full, it appears that it presents no legal difficulties whatsoever; There was evidence tending to show much it was a case which turned largely upon facts spirit and force on the part of the defendant which had to be sifted from conflicting tes- in his use of the hammer, with a result much timony; and, since the result is practically more severe and lasting than that which the free from such errors as would warrant the defendant finds from considering other testiinterference of an appellate court, the judg-mony in the case. From conflicting evidence ment must be affirmed. All the Justices con- the jury determined the amount of damages, curring. and this was approved by the trial court, and we find in the record no sufficient basis for personal property alleged to have been condisturbing it. verted by the father and brother, and to enThe judgment is affirmed. All the Justices join them from disposing of certain personconcurring. Plaintiff, among other things, alleged that about 1888 his parents agreed with him and his brother that in return for their support the parents would give their land to the sons, by will or otherwise; that afterwards it was agreed for each of the sons to have one-half the land; that the plaintiff took possession of his half and lived thereon as his homestead for 17 years, supporting the parents until the surviving father left the place; that such support was worth much more than the use of the land; that the father and brother had conspired to oust him therefrom and to sell the land, had converted personal property belonging to him, and were threatening to sell other property in which the plaintiff had a joint ownership. Held, error to compel him to elect to try only one of such matters, as all should have been settled in the one action. The al property claimed by the plaintiff. jury found, among other things, that about 1888 the parents made an oral agreement with their sons, James and Francis, to make a will giving to each one-half of their land; that in part consideration for this agreement the sons were to support the parents during their lifetime, and were also to pay off a mortgage on the land; that afterwards an agreement was made to divide the land, James to have one-half and Francis the other, and possession was taken by the two sons, and the mortgage was paid by them from their funds; that pursuant to the first agreement a will was made, giving to each a half interest in the land subject to certain bequests to be paid by the sons, to which they consented; that James supported and cared for his parents up to October, 1910; that the father left his home by reason of the persuasion and undue influence of Francis. The plaintiff having been compelled to [Ed. Note. For other cases, see Election of elect and having proceeded upon the first Remedies, Cent. Dig. § 6; Dec. Dig. 5.] 2. SPECIFIC PERFORMANCE 94 CONTRACT TO CONVEY LAND-FAILURE OF CONSIDERATION-AGREEMENT TO SUPPORT. Having found that the plaintiff had breached the contract by failure to support his father and by putting him in fear of bodily harm by threats of violence and personal injury, thereby causing him to leave, the trial court rightfully held him not entitled to specific performance. [Ed. Note.-For other cases, see Specific Performance, Cent. Dig. §§ 249-256; Dec. Dig. 94.] OUSTER AND SALE - 3. INJUNCTION 39 BREACH OF CONTRACT. But in view of the long-continued support furnished by the son and the allegations as to its value, it is held, that he has a right to enjoin ouster and the sale of the land to another until reimbursed or secured for the value of such support over the use he has had of the land. [Ed. Note. For other cases, see Injunction, Cent. Dig. §§ 91, 93, 94; Dec. Dig. 39.] Appeal from District Court, Dickinson County. Action by James P. Holland against James Holland and another. From judgment for defendants, plaintiff appeals. Modified and remanded. See, also, 89 Kan. 730, 132 Pac. 989. Monroe & Roark, of Topeka, for appellant. C. S. Crawford, of Abilene, and J. V. Humphrey, of Junction City, for appellees. WEST, J. [1, 2] The plaintiff, James P. Holland, sued his father and brother to protect his possession and interest and perfect his title to certain land claimed by him in pursuance of an oral agreement with his parents by which they were to be supported by the sons and leave the land to them by will or otherwise, also to recover for certain cause of action only, the court announced that it would dismiss the action as premature, apparently on the ground that the will could not take effect during the testator's lifetime, and hence the plaintiff was not enWhile expressing some titled to a decree. dissatisfaction with one finding, it was stated that the court had decided neither to make another nor to set that one aside. Afterwards, however, the findings that the father had not left because of James' failure to care for him properly or mistreatment, but had left on account of the influence of Francis, were set aside, and findings made by the court that James committed a breach of the oral agreement by neglecting and failing to properly care for his father, by putting him in fear of bodily harm by threats of violence and personal injury, thereby causing him to leave his home, and that the mortgage was paid from the proceeds of certain live stock owned by the father and sold by the sons. The conclusions of law were to the effect that an action for a specific performance could not be maintained during the life of the father, and that the son was not entitled thereto because he had not performed the oral agreement upon his part but had committed a breach thereof, and it was therefore adjudged that the first cause of action be dismissed for want of equity; that the plaintiff was not entitled to the injunction prayed for to restrain the disposal of the land nor to any other equitable relief, "for the reason that he has forfeited all right to any interest in or to the same by his failure to perform the oral agreement in question and by his breach of the conditions of the same." |