Summary
In Cassinelli v. Cassinelli, 24 Nev. 182, 51 P. 252, this court again stated that malice might be inferred from want of probable cause.
Summary of this case from Gattshall v. SizemoreOpinion
No. 1503.
October Term, 1897.
APPEAL from the District Court of the State of Nevada, Lyon county; C. E. Mack, District Judge:
Action by Vitoria Cassinelli against Pietro Cassinelli for malicious prosecution. Judgment for plaintiff, from which defendant appeals. Affirmed.
Langan Knight, for Appellant.
John Lothrop, for Respondent.
The facts sufficiently appear in the opinion.
Action for malicious prosecution.
The case was tried by the court without a jury.
Respondent recovered judgment for $305 and costs.
After respondent had introduced his testimony in chief, appellant moved for a non-suit upon the ground that there was no evidence tending to show that the prosecution was maliciously instituted, or without probable cause, or that respondent had been damaged in his person.
The motion was denied and the, ruling is assigned as error.
Plaintiff had introduced evidence tending to prove that the property of the appellant had been destroyed by fire upon the night of the 5th day of February, 1896. That the next morning the appellant had lodged a complaint in the court of the justice of the peace of the township in which he resided and in which the fire occurred, charging respondent and two others with the crime of arson. Respondent was arrested and remained in custody three days. Upon the preliminary examination he was discharged.
Evidence was also introduced, and not denied, tending to prove an alibi.
It was the duty of respondent to have established to the satisfaction of the court that the appellant had no probable cause for the prosecution. This was done by evidence tending to prove the alibi and other facts tending to show the absence of incriminating circumstances.
It was also the duty of respondent to have shown malice, but the fact of malice may be inferred from want of probable cause. ( Oliver v. Pati, 43 Ind. 32; Ventress v. Rosser, 73 Ga. 534; Carson v. Edgeworth, 43 Mich. 241; Dietz v. Langfitt, 63 Pa. St. 234.)
The evidence as above stated was not only sufficient upon the motion to support a recovery for nominal damages, but also for actual and exemplary damages. If respondent was entitled to recover, the damages may have included deprivation of liberty and injury to his feelings.
Upon the merits of the case the evidence was in most respects conflicting, and in such cases we cannot disturb the judgment.
Other matters have been called to our attention by the brief of counsel; we have examined them, but do not deem them of sufficient importance for discussion, and none of them can affect the result.
Judgment and order affirmed.