
    Arthur W. Graham, Respondent, v. Eugene Graham, Appellant.
    Third Department,
    January 4, 1911.
    Evidence—malicious prosecution—cruelty to animals — prior offenses of plaintiff— grounds for prosecution other than those furnished by defendant — trial — improper efforts of counsel to discredit defendant.
    In an action for malicious prosecution arising from the fact that the defendant with others joined in a complaint charging the plaintiff with cruelty to animals at various times, and laid the matter before a society for the prevention of cruelty to animals, which, through its attorneys, upon depositions signed by the defendant and others, prosecuted the plaintiff and caused his arrest, it is error to exclude evidence offered by the defendant to prove an act of cruelty to an animal by the plaintiff communicated to him prior to the act for which the plaintiff was prosecuted.
    So, too, upon the issue as to whether the defendant instituted the proceedings, it was error to exclude questions on the cross-examination of the superintendent of the society for the prevention of cruelty to animals, asking whether at the time the information was given the attorneys for the society had other evidence and witnesses besides those furnished by the defendant and those acting with him.
    Moreover, a verdict for the plaintiff in such action will be reversed there being a close question of fact for the jury where his attorney asked the defendant how many accidents he had with his automobile, whether he was blameless or otherwise with reference to them, and whether the husband of one of his witnesses, whom he threatened to kill, was not suing him for criminal conversation.
    Appeal by the defendant, Eugene Graham, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Cortland on the 27th day of September, 1909, upon the verdict of a jury for $250, and also from an order entered in said clerk’s office on the 28th day of September, 1909, denying the defendant’s motion for a new trial made upon the minutes.
    
      Davis & Lusk [Rowland L. Davis of counsel], for the appellant.
    
      Irving H. Palmer, for the respondent.
   Kellogg, J.:

The plaintiff recovered $250 damages for malicious prosecution. The defendant and ten others joined in a written petition or complaint to the authorities charging the plaintiff , at different times with cruelty to his animals. The defendant saw the superintendent of the Society for the Prevention of Cruelty to Animals in Cortland and told him of the particular cruelty for which the complaint was finally made, reciting that he saw the offense committed. The superintendent took no action until he went and examined the horse which was alleged to have been injured. He reported the matter to the attorneys of the society, took the defendant before the attorneys where he stated the acts which he said he saw constituting the cruelty. The attorneys thereupon, prepared a complaint, which the superintendent lodged with the justice and swore to ; he also lodged with the. justice a deposition to be sworn to by the defendant and the other person with him who signed the original petition. At the request of the superintendent they swore to the deposition before the justice. The plaintiff was arrested, the prosecution conducted by the superintendent and the attorneys of the society; the defendant and some of the other signers of the petition were called by the superintendent as witnesses upon the trial; witnesses were also called by the plaintiff, and the plaintiff was discharged.

The information the defendant gave to the officer, his evidence upon the trial before the magistrate, and his evidence here, is to the effect that lie saw the plaintiff strike and beat his horse with a gas pipe or club, knock the horse down, and that the horse lost one eye and suffered other serious injury.

Six other witnesses upon the trial swore that they saw the occurrence, and their evidence tends to show not only that the defendant had reasonable cause, but that the plaintiff committed the' crime.

The -evidence of the plaintiff and his hired man tends to show that no offense was.committed; but they swore-that about the same time both of the plaintiff’s horses had the colic in the stable, and one' of them got down and pounded its head against the floor, lost its eye and bruised itself most seriously, and in that way accounted for .the injured eye and the other bruises which the superintendent of the society saw upon the horse. The plaintiff’s wife, a witness upon the trial, was not sworn upon that subject, although she was residing with him upon the farm. Some of his family swear that when they came from school they knew the horse was being doctored, as they understood; for the colic.

It is strange that the horse should receive the injury in the manner recited by the plaintiff and his hired man. They were both interested in the result, because if the crime was committed they were both participants, and perhaps the preponderance of the evidence fairly shows that if the plaintiff did not commit the crime there was at least good cause to believe that he did.

"Upon cross-examination the plaintiff admitted that perhaps one of these horses fell down at the sand bank when drawing a load of sand at about the time the offense was alleged to have been committed; that if he struck it it was with the whip. Defendant offered to prove a prior act of cruelty by a witness who saw it and communicated it, to him before tlie complaint was made ; this was excluded under exception. As bearing upon the question whether the defendant instituted the proceedings, upon cross-examination of the superintendent he asked him if the attorneys for the society advised him, at the time the information was given, that they had other evidence and other witnesses besides the information given by the defendant and those acting with him. This was objected to as a privileged communication between attorneys and client, and was erroneously excluded under the defetidant’s exception.

The court charged the jury, in substance, that to recover the plaintiff must establish three propositions : “ First, that the prosecution was instituted, or caused or instigated by the defendant. How I do'not understand that upon the evidence in this case there can be very much question upon this point. As I understand the evidence of the defendant, he concedes that he brought this matter to the attention of the officer for the Society for the Prevention of Cruelty to Animals, and made a complaint to him that the plaintiff had violated the law, and he also in addition to that made a deposition before the justice of the peace, so I think you will have little difficulty in reaching a conclusion upon this first question,” to which the defendant excepted.

The defendant contended that he did not institute the proceedings ; that an enraged neighborhood agreed that prosecution must be had and the matter called to the attention of the society, and that while first saying the matter had better be dropped, he did communicate it to the officer, and at his request saw the attorneys for the society and presented to them, the petition, and that he had no other conceru or interest in the matter, and that the officer acted upon the advice of counsel upon information which they gave him, upon his personal examination of the horse and information which he received from others, as well as the defendant and signers of the petition.

The court charged the jury that this was a case where one of the parties had manufactured a story, and he and his witnesses had told it from the stand, a story manufactured for the purpose of the case, and it evidently felt that if the defendant did not see the cruelty committed he was swearing falsely, and, therefore, there could be no mitigating circumstances arising from reports of other cruelties.

It is evident that on the day in question the plaintiff had some difficulty with his team in the sand bank, that one of the horses fell and that they were whipped, ' It may be that they were only hit with a whip; that the horse was not knocked down. It is possible that if the defendant and the other parties interested had heard of the abuse by plaintiff of his horse under similar circumstances, they might more easily have seen the occurrence in an exaggerated manner and imagined that the horse was knocked down.by a blow with a club. I think the defendant was entitled to show the former cruelties which had been communicated to him before the complaint was made.

It was not pertinent inquiry how many accidents the defendant had had with his automobile, , or whether he was blameless or otherwise with-reference to them. It was not important whether the husband of one of the defendant’s witnesses in the action had upon the calendar of that term of court an action, against the defendant for criminal conversation, and that the ■ husband had notified the defendant that he must keep away from his wife and the defendant had threatened to kill him. It was a breach of propriety for the counsel to try to bring that action, and the controversy in -that action, before 'the jury solely to prejudice this case when the counsel knew that it was not admissible. ' It was evidently not made in good faith. Where upon a close question of fact before a jury counsel resorts to such methods to win a verdict, he does it with the knowledge that he imperils the verdict which he thus seeks. It is probable that in this case this practice had the desired effect in influencing the verdict.

' The above exceptions and offers of testimony were prejudicial to the defendant and are quite probably reflected in the verdict. The judgment and order are, therefore, reversed and a new trial granted, with costs to the appellant to abide the event.

All concurred.

Judgment and order reversed and new trial granted, with costs to appellant to abide event.  