Emerson v. Cochran

Mr. Justice Gordon delivered the opinion of the court, February 15th, 1886: It is undoubtedly true that in Pennsylvania, as elsewhere, the action of case will lie for the malicious use, or abuse, of civil process ; this, however, must be taken with the qualification that such process has been used to restrain the defendant’s personal liberty or to interfere with his property: Muldoon v. Rickey. 103 P. S. R., 110; Kramer v. Stock, 10 Watts, 115 ; Mayer v. Walter, 14 P. F. S., 283. The suit in hand is founded on the alleged malicious use of the writ of capias, by which the person of the plaintiff was seized and imprisoned. In order to sustain this action the plaintiff must not only allege in his narr, but also prove on the trial, that the defendant had not probable cause for his prosecution, and was actuated by malicious motives. The want of probable cause without malice is not sufficient; so where probable cause appears, the motive for the prosecution, however malicious, goes for nothing: Kramer v. Stock, supra; McCarthy v. De Armit, 99 P. S. R., 63, and, as was said by Mr. Justice Trunkey, in the case last cited, something more than mere legal or theoretical malice is requisite to sustain an action of this kind, for it must be proved as a fact, and whilst it maybe inferred from a want of probable cause, its existence nevertheless is for the jury. From this it follows that a jury ought not to be permitted to infer malice from the mere want of probable cause, when by other circumstances it is disproved. The discontinuance of the capias was undoubtedly prima facie proof of the want of' probable cause for the institution of the suit, but only prima facie, and required but slight evidence for its rebuttal. In this case, as in others of the same kind, proof of a discontinuance is chiefly important as showing the determination of the previous action, without which, it would seem, a suit like that in hand could not be maintained: Mayer v. Walter, supra. But, as we have seen, where malice is disproved, the want of probable cause is of no consequence, and in this is found the chief defect in the plaintiff’s case. The discontinuance and other evidence of a prima facie character going to establish malice in the original prosecution was, if there is any force in authority, completely rebutted by the fact, which no one pretended to gainsay, that the defendants in good faith acted upon the advice of counsel. We have said, and that very recently, in the case last above cited (per Mr. Justice Trunkey) : “ When the prosecutor submits the facts to an attorney at law, who advises they are sufficient, and he acts thereon in good faith, such advice is often called probable cause, and is a defence to an action of malicious prosecution; but in strict [623] ness the taking, the advice of counsel and acting thereon, rebuts the inference of malice arising from the want of probable cause.” If what is here said be law, and that it is so is too well settled for doubt or discussion, then was judgment properly entered for the defendants. Both Mr. Cochran and Mr. Ewing, reputable attorneys at law, detail the statements made to them by James Cochran, immediately before the issuing of the writ, concerning the behavior of the rioters, and his reason for thinking they were aided and abetted by the plaintiff, and ■allege that without any suggestion on part of the defendants, they advised the issuing of a capias. This, unless rebutted by showing that they submitted a false statement by their counsel, was sufficient to rebut the presumption of malice. But the evidence of the plaintiff, so far from showing that the statement thus made was false, in all material particulars sustained it. Moreover, if we consult the testimony produced by the defence, the Cochrans had not only probable, but actual cause for their suit. That the strikers occupied Emerson’s ground with his assent, if not by his invitation, can scarcely be doubted, and beyond this there was good reason to believe that he was actively engaged in the strike. It is true, the defendants did propose that if the plaintiff woúld interfere to assist in the expulsion of the rioters from his land they would discontinue the suit as to him. But what of that? Of course, it was of great consequence to them that these strikers should not have a secure lodging place within a few rods of their mines, hence, however perfect their cause of action against Emerson, they would make a good bargain if by a discontinuance they could relieve themselves of so great a nuisanc.e. Nor have I ever heard that an offer of compromise, in a civil suit, was evidence either of the want of probable cause or malice. It will thus appear that the plaintiff’s first point was properly refused for want of evidence to support it. In like manner, was the third well refused, because the presumption of malice was conclusively disproved. As these points embrace the material assignments of error we think it unnecessary to discuss the others. The judgment is affirmed.