McKenna v. Heinlen

CHIPMAN, C.

Action for malicious prosecution. The court made an order granting 'defendants’ motion for nonsuit and entered judgment accordingly, from which, and from an order denying his motion for a new trial, plaintiff appeals. The original suit, which is complained of as having been maliciously instituted, was a civil action for the recovery of money alleged to have been appropriated by McKenna while in the employ of John Heinlen, and resulted in a judgment in favor of McKenna. Heinlin appealed from the judgment to this court; the appeal was dismissed and the judgment became final. Thereupon Mc-Kenna, plaintiff herein, brought this action against John Heinlen and joined M. A. Heinlen as defendant, alleging that the latter conspired with John to bring the original'action.

1. Appellant claims error in this, that when plaintiff was under cross-examination as a witness the court permitted defendants, over plaintiff’s objection, to cross-examine him as to items other than those set out in the original complaint. The

[99]

objection went to the relevancy of the evidence, that it was not cross-examination, and "that the attempted examination was net concerning any matter which was in the original case of

Heinlen v. McKenna,

for the malicious prosecution of which this action was brought.” It appears that from June, 1886, until December 1, 1893, plaintiff was in the employ of John Heinlen, who was conducting a large ranch near Lemoore, Kern county, f bought and sold cattle, ran a butcher shop and a warehouse. Plaintiff attended to much of this business and was also bookkeeper until the latter part of January, 1889, and after that he kept the books part of the time. In May, 1894, John Heinlen commenced the original action against McKenna, which the latter in this present action, alleges was maliciously brought. In the complaint Heinlen alleged that McKenna had received certain specific sums of money while in Heinlen’s service^ and belonging to the latter, for which he failed to account; in that action McKenna answered denying the indebtedness, and set up a counterclaim, and at the trial the jury gave him the verdict. In the present case he was called as a witness in his own behalf and testified to the nature and extent of his employment, and, at the conclusion of his testimony in chief, 'testified that he turned over all the books to M. A. Heinlen when he quit John’s service and added: "Those books showed and contained a true and correct statement of all my business affairs that I conducted for John Heinlen during the period of time which they covered.” He was not interrogated as to any of the items specified in the original complaint. The cross-examination complained of related to the correctness of items found in the books of account, other than those specified in the original complaint; it was simply an effort by defendants to show probable cause for charging certain specific acts of misappropriation by proving on cross-examination certain other and separate acts which apparently came to defendants’ knowledge after the original complaint was filed, and could not have been a moving cause for the suit brought against plaintiff. We do not think that defendant could by this means make out a case of probable cause. When Heinlen brought his original action it was upon information he then had, and he could not justify by showing that he afterward discovered other evidences of McKenna’s want of fidelity or of