Devitis v. Newcomb-Endicott Co.

Clark, J. This is an action of malicious prosecution in which plaintiff had verdict and judgment. Defendant has appealed. Plaintiff was a teacher in a public school at Detroit. She married and desired furniture for a home. She had a charge account at defendant’s store and went there for furniture, made her wants known, and was directed to the office of the credit manager, Mr. Reutter, where, on September 18,1926, she signed in blank a lease, so-called, a title-retaining contract. There is testimony that it was usual practice at the store, when goods were to go out on title-retaining contract, for the customer to arrange for the purchase and to sign the paper in advance, and, when selections had been made, to write them into the contract. On or about the date of the contract, plaintiff made selections of furniture. The items and amounts were carried into the contract. It also appears that some articles of furniture which had been charged to plaintiff on open account were likewise carried into the contract. Defendant ceased active business, and its accounts were in charge of Mr. Maynard, who was employed in that regard. Mr. Reutter was not in defendant’s employ after July 30, 1927. Plaintiff stored the furniture, and later took it to Toronto, where it was disposed of. Mr. Maynard, learning of what had befallen the *3 furniture, and after making inquiries, and after having a letter to plaintiff returned, went to the prosecuting attorney, exhibited the contract, and disclosed what he knew. He stated to the prosecuting attorney that he had not seen the contract signed, and that Mr. Reutter had acted for defendant in making the contract. He also gave the information relative to taking the furniture from storage to Toronto. The prosecuting attorney directed that Mr. Reutter and some one from the storage company appear at his office. Mr. Reutter and a Mr. Pemberton of the storage company appeared and were questioned by the attorney, who thereupon directed that complaint be made by Mr. Maynard. Arrest, preliminary examination, commitment for trial, trial, acquittal, and this suit followed. Plaintiff admitted the signing, denied that she knew it to be a form of title-retaining contract, and testified that she signed her name when requested and because of the change of name by marriage, and that she thought she bought the furniture on open or charge account. Defendant’s contention is that verdict ought to have been directed in its favor as requested, for the reason that there had been a full and fair statement to the prosecuting attorney of all material facts within the knowledge of Mr. Maynard, the prosecuting witness, that the complaint was made on advice and direction of the prosecuting attorney, and that, therefore, probable cause was established as a matter of law, and that- plaintiff had failed, as a matter of law, to establish want of probable cause. In this case, as in like cases, it was upon plaintiff to make a case, to establish three elements. Swaney v. John Schlaff Creamery Co., 212 Mich. 567. One of them is that defendant had no probable cause. *4 The liability here, if any, of the defendant corporation is for the acts of its agent, Maynard. 14A C. J. p. 770; 38 C. J. p. 454; Wachsmuth v. Merchants National Bank, 96 Mich. 426 (21 L. R. A. 278). It is not liable for the investigation conducted by the prosecuting attorney in his questioning of Mr. Reutter and Mr. Pemberton, neither of whom was then an agent or employee of this defendant, nor for what they or either of them said, or did not say, to the prosecuting attorney. In Swaney v. John Schlaff Creamery Co., supra, it was said: “If the prosecuting witness has in good faith fully and fairly stated all the material facts within his knowledge to * * * the prosecuting attorney and acted upon his * * * advice, proof of the fact establishes a case of probable cause.” See Davis v. McMillan, 142 Mich. 391 (3 L. R. A. [N. S.] 928, 113 Am. St. Rep. 585, 7 Ann. Cas. 854). The record is wholly to the effect that Mr. Maynard disclosed to the prosecuting attorney all material facts relating to the matter within his knowledge. He did not investigate to learn what defense or contention, if any, plaintiff intended to make, nor was he required to do so. Dunlap v. New Zealand Fire & Marine Ins. Co., 109 Cal. 365 (42 Pac. 29). He relied on the contract. If he had gone into its antecedents, had checked the original sales slips, he might have learned that the contract had ‘been signed in blank in accordance with store custom, and that plaintiff had had a charge account from which-.some items were taken into the contract, but he did not do that, and had no such knowledge, nor do we think he was required so to do. In a note reviewing many cases, 5 A. L. R. 1695, it is said: *5 “If there are sufficient facts to warrant an ordinarily prudent person in believing that another has committed a crime, failure to make further investigation before instituting a prosecution does not constitute a want of probable cause. ’ ’ And, at page 1699: “It does not show a want of probable cause for a person to fail to exhaust all sources of information before instituting a proceeding.” And page 1700: “It does not show a want of probable cause for a person to fail to verify each item of information received, before proceeding thereon.” And in Weiden v. Weiden, 246 Mich. 347, where judgment on verdict directed for defendant was affirmed, it was held, quoting syllabus; “If the facts proven establish probable cause, it is not necessary to defendant’s protection that he was familiar with all of them when he made the complaint, but if he acts as a reasonably prudent man should act under the circumstances, he is not to be cast in damages for malicious prosecution even though the accused be innocent.” If defendant had instituted a civil suit upon the contract, such contract bearing, „unquestionably, plaintiff’s signature, would have been prima facie evidence in respect of defendant’s rights under it. . Birdsall v. Smith, 158 Mich. 390, involved prosecution for selling adulterated milk. It was instituted upon a certificate of a department of State showing adulteration. The certificate was prima facie evidence of such adulteration. The complaint had been made by an employee of the department. Investigation would have shown the certificate to have been *6 made in error. Held, no duty rested on such employee to make further investigation of the facts, the certificate being prima facie evidence, and judgment for defendant on directed verdict was affirmed. Maynard was not required in any aspect of this case to make further investigation. He made to the prosecuting attorney full and fair disclosure of all material facts within his knowledge. He acted upon his advice and direction. Probable cause was established as a matter of law. Verdict should have been directed for defendant. Fleckinger v. Taffee, 149 Mich. 678. Reversed, with costs, and without new trial. Sharpe, North, Wiest, and Butzel, JJ., concurred with Clark, J.