Topolewski v. Plankinton Packing Co. 143 Wis. 52. dangers to informers as will efficiently deter them from making known to professional legal advisers such information as they may have respecting probability of crime having been committed and the guilty parties; that so long as they act honestly they should have complete immunity from consequences. Such is the trend of even the written law as evidenced by numerous enactments rendering offenders immune from prosecution, criminally, who have been examined under oath in search of information upon which to institute prosecutions. Logically, it would seem, the unwritten law of this state should be that a conviction in a criminal prosecution, though reversed on appeal for any reason, is conclusive evidence of probable cause, rendering the person who instituted the proceedings immune from being successfully charged as a malicious prosecutor. In case a court has before it evidence, which, in its judgment, renders the accused guilty of the offense charged against him, it would look like a travesty on justice to hold that a person who instituted the prosecution, acting under professional advice based on the same appearances, did not have reasonable ground to believe the man guilty. It would take much time and space to cite and discuss the conflicting adjudications on the subject before us. As an original proposition, in our judgment, the logic of the unwritten law of this state leads to the conclusion that a conviction in a criminal prosecution should stand as probable cause for its commencement, as regards the person who instituted it, and irrespective of any disturbance of the judgment on appeal. But, if such were not the case, this court would be inclined to reach the same result in choosing between the three conflicting lines of authority, because of its uniform custom, in case of such conflicts, there being no great preponderance in numbers and logic in favor of a particular doctrine, to follow that of the federal supreme court. That Topolewski v. Plankinton Packing Co. 143 Wis. 52. court reviewed the conflict in question in Crescent City L. S. Co. v. Butchers' Union S. H. Co. 120 U. S. 141, 159, 7 Sup. Ct. 472, 481, and declared the true rule to be that: ... "The judgment or decree of a court having jurisdiction of the parties and of the subject matter, in favor of the plaintiff, is sufficient evidence of probable cause for its institution, although subsequently reversed by an appellate tribunal. . . ." That rule "was not established out of any special regard to the person of the party. . . . It will avail him as a complete defense in an action for malicious prosecution, although it may appear that he brought his suit maliciously for the mere purpose of vexing, harassing, and injuring his adversary. The rule is founded on deeper grounds of public policy in vindication of the dignity and authority of judicial tribunals constituted for the purpose of administering justice according to law, and in order that their judgments and decrees may be invested with that force and sanctity which shall be a shield and protection to all parties and persons in privity with them." It "has respect to the court and to its judgment, and not to the parties, and no misconduct or demerit on their part, except fraud in procuring the judgment itself, can be permitted to detract from its force." "Neither misconduct nor demerit can be imputed to the court itself. The record of its proceedings imports verity; its judgment cannot be impugned except by direct process from superior authority. The integrity and value of the judicial system, as an institution for the administration of public and private justice, rests largely upon this wholesome principle." There is no mistaking the meaning of that emphatic language. It was used after reviewing many cases bearing on the subject, some of which limited the rule as to immunity by judgment, to judgment "not obtained by undue means." It discarded the exception permitting raising a jury question as to whether a judgment was obtained by undue means notwithstanding its being between the parties free from collateral attack, except for extrinsic or collateral matters. Our conclusion is that a judgment not procured by fraud Topolewski v. Plankinton Packing Co. 143 Wis. 52. against a defendant in a criminal prosecution, though reversed for error, is conclusive proof of probable cause for commencing the prosecution, and that the effect of such judgment in that regard cannot be impaired by trying over again in an action for malicious prosecution, issues of fact raised, or proper to have been raised, and litigated on the former trial; that the term "fraud" in procuring the judgment, used by the federal supreme court, in the expression "no misconduct or demerit" of the parties, "except in procuring the judgment itself, can be permitted to detract from its force," refers to fraud extrinsic and collateral, not as to a matter involved and litigated and decided in the action, as for instance, in this case, whether the story of respondent or that of Dolan and others, where there was a conflict, is true. It follows that the case, as to the second cause of action, should have been taken from the jury. The situation created by the judgment in the criminal action, as regards immunity to appellant from being successfully charged with want of probable cause for instituting the prosecution, was in no wise changed by the reversal for error. There was no proof of facts extrinsic impairing that situation. There was only proof to submit, as in the criminal case, the question of whether respondent's story of how he came to take the meat was true, which story the court in such case, in effect, found to be untrue and which finding, with others, as we have seen, has not been, in reality, disturbed, but found insufficient in law to constitute guilt. It is conceded that there was a false imprisonment of respondent for a brief period; from the time he was taken charge of by direction of defendant's manager, Layer, till he was arrested on the warrant. The exact length of time does not appear from the evidence, but it sufficiently appears to have been less than one hour and not to have been characterized by any act of an aggravating nature. He was merely, without protest, taken in charge by a city detective at the VOL. 143-5 Topolewski v. Plankinton Packing Co. 143 Wis. 52. direction of appellant's manager, immediately escorted to the police station, which was a short distance away, he driving his own horse, apparently as ordinarily, and then, without much delay, placed under arrest on a proper warrant. For whatever damages he suffered, under all the circumstances, by reason of this brief illegal restraint, it must be conceded appellant is liable, if it is chargeable with the misconduct of Layer; otherwise not. It must be conceded that, if the agents of appellant acted within the scope of their employment in committing the wrongful act, then it is liable, notwithstanding they may have used means within such scope which appellant did not authorize and had no reasonable ground to expect would be resorted to. The law on the subject has been stated by this court with sufficient definiteness to render more than merely restating it, as a rule, unnecessary: "The master is liable for the negligent or wrongful acts of his servant committed in endeavoring to perform a duty delegated to him by the master, and this is so notwithstanding the method adopted by the servant may not have been authorized, and may even have been prohibited, by the master." "The test is whether the act was done in the prosecution of the master's business." Cobb v. Simon, 119 Wis. 597, 97 N. W. 276. "A master is liable for the tortious act of the servant done in the scope of his employment, though the master did not authorize it, or even though he forbade it." Johnston v. C., St. P., M. & O. R. Co. 130 Wis. 492, 498, 110 N. W. 424, 426. While it cannot be held, ordinarily, that a corporation or an individual in conferring power to act within a particular scope, intended to confer authority to abuse such power, or had reasonable ground to expect that it would be abused, such corporation or individual is, nevertheless, responsible for such abuse and, also, whether it occurs within the scope of the duty or not, if with full knowledge of the facts the conduct is Topolewski v. Plankinton Packing Co. 143 Wis. 52. ratified. That is the effect of Pfister v. Milwaukee Free Press Co. 139 Wis. 627, 121 N. W. 938. The law governing the subject having thus been clearly declared by this court, we forego referring to authorities elsewhere which have been numerously cited to our attention. It seems that the facts of this case fall fairly within the doctrine stated. The whole conduct of appellant's affairs seems to have been left to Moody, the secretary, and Booth, the general manager, with Layer as manager of the wholesale. department. There was no president and, for aught appearing, no vice-president. That Booth and Moody had authority, under the circumstances indicated, incident to their trusts, to protect the corporate business from unlawful depredations, and that prosecution of depredators, such as it was supposed respondent to be, was a legitimate means to that end, and within the scope of their employment in that regard, seem plain. Such being the case, it is considered that whatever Layer, the sales manager, did to protect the business, by precedent direction of those in charge thereof and within the scope of such direction, and whether the means employed were or were not legitimate, and whether he acted by precedent direction or not, if his conduct was afterwards ratified by the corporation by approval of those in general charge of its affairs-the corporation did, as regards, at least, compensable injuries to them. The evidence is clear that the general manager impressed strongly upon the sub-manager, Layer, the necessity of apprehending those who were guilty of defrauding the company and that whatever he subsequently did was pursuant thereto. His act in causing the irregular illegal restraint of respondent was, at the best for appellant represented by its general manager, Booth, an abuse of power in the execution of a trust. But it satisfactorily appears that, after Layer's conduct came to the knowledge of Booth and all in authority, they not only did not disaffirm it, but ratified it. The con |