Smith v. Walter

Opinion, Mr. Justice Mitchell : It is to be regretted that this long personal controversy should be further protracted, but an error, unfortunately pervading the whole charge, compels a reversal of.the judgment. The learned judge instructed the jury: “ The defendant has submitted a point to the court to the effect that if you believe that is true which Cyrus G. Derr testifies to — in other words, if you believe him to be a truthful witness — the verdict must be for the defendant. That point the court feels it their duty to affirm, and we shall distinctly affirm that point, and affirm it in this instruction. And we impress it upon you, gentlemen of the jury, that it is your duty, under the view which the court takes, to find for the defendant, unless you are prepared to say that what Mr. Derr testifies to is not true.” The same error appears in the answers to several of the points, but this is the most conspicuous illustration of it. [468] This was an-incomplete, and therefore incorrect, presentation of the law. It gave the jury an irrelevant and misleading issue upon which to find their verdict, and it trespassed upon the jury’s province in regard to the real defence. It was an incorrect statement of the law, because it omitted all reference to the truthfulness and completeness of the defendant’s statement to his counsel. Every word of Mr. Derr’s testimony could be absolutely true, and yet the statement made to him by his client might be so incomplete, so lacking in some essential fact, so uncandid, or colored by malice or prejudice, as to be no defence at all. The law was accurately stated by the defendant’s counsel themselves, in their fourth point: “ When.....the prosecutor goes to a lawyer, and states all the facts to him in good faith, and he is advised by the lawyer that he has good grounds in law for making the criminal charge, and following the advice of the lawyer he in good faith commences the criminal prosecution, he is not liable in an action for malicious prosecution.” This point the learned judge properly affirmed, but in his charge he unfortunately omitted to add the necessary qualifications in regard to the client’s statement, upon which the counsel’s advice was founded. The instruction quoted, also gave the jury a false issue. As already shown the entire truthfulness of Mr. Derr’s evidence was not inconsistent with his client’s liability, and as Mr. Derr was probably known to every juror in’ the box, as a prominent member of the bar, whose veracity no one would think of questioning, the direction to decide their verdict on their belief in his truthfulness as a witness, gave the plaintiff no chance at all on the real issue in the case. The real issue was whether the defendant had made a fair and full statement of the facts to his counsel, and then in good faith followed his advice. ’ This cardinal fact the court took away from the jury, by assuming that the statement as testified to by Derr and his client, was sufficient in law, and leaving only to the jury the fact that it had been made. This was an encroachment on the province of the jury. It is sometimes said that the advice of counsel furnishes probable cause for the prosecution, but this is not an accurate statement of the law. Absence of probable cause raises a presumption of malice, but the presumption may be rebutted by [469] showing that malice did not in fact exist, and one of the ways of showing that fact is by showing the advice of counsel. It is not however the advice that rebuts the presumption of malice, but the innocence of the defendant’s conduct, of which his seeking advice is merely evidence. Whether the advice makes out a good defence or not, depends on the good faith with which it is sought and followed. Such good faith is shown by the candor, fullness, and fairness of the client’s statement, upon which the advice was based, and its adequacy in those respects, whenever it is disputed, is for the jury to determine upon all the evidence. The evidence in the present case appears to have been so entirely satisfactory to the court, that they deemed it conclusive as a matter of law, and intentionally took the consideration of it away from the jury. Were it not for this, we might pass over the errors complained of, as mere inadvertent slips of expression, which did no harm, inasmuch as the law was fully and accurately stated, not only in the affirmance of defendant’s fourth point, but in other parts of the charge. But the plain intent to take that question from the jury, and the unfortunate emphasis with which it was done, by resting the entire case on the unchallenged truthfulness of Derr’s testimony, make the error too material to be disregarded. The plaintiff having made out a complete prima facie case, was entitled to have the jury pass upon it, and the defence, as a whole. The court might properly intimate their opinion to the jury, to aid, not to control the verdict, or might set the verdict aside if against the weight of the evidence, but it could not determine the substantial issue in the case as a matter of law, and this was what in effect was done. Judgment reversed, and venire de novo awarded.