Replogle v. Frothingham

Opinion by Beaver, J., No question arises in this case as to the duty of the plaintiff. He admits the obligation which rests upon him to show that in the prosecution which the defendant instituted against him [378] there was an absence of a well grounded belief on his (defendant’s) part that the plaintiff was guilty of the offense with which he was charged, which is called probable cause, and that defendant was actuated by malice. Plaintiff claimed, and the court below held, that there was such evidence of the absence of probable cause and of the presence of malice as to warrant the submission of these facts to the jury. There is no serious contention on the part of the defendant (appellant) that the court below erred in its definitions of the elements which must enter into and coexist in an action of trespass for malicious prosecution. It is true that in the eighth assignment of error the language of the answer of the court as to what constitutes probable cause is different from that embraced in the point for charge. Inasmuch, however, as the answer is in the exact language used in McClafferty v. Philp, 151 Pa. 86, and in Ruffner v. Hooks, 2 Pa. Superior Ct. 278, the court was clearly justified in following the language used rather than that of the point presented by the defendant. The burden of the defendant’s specifications of error and of the argument based upon them is that, inasmuch as the facts (according to his view) both as to probable cause .and malice were undisputed, the court should not have submitted them to the jury. This claim, however, is an assumption which' is not warranted by the testimony'. “ The question as to what circumstances constitute probable cause is for the court. Whether they have been shown in a particular case is for the jury to decide : ” Auer v. Mauser, 6 Pa. Superior Ct. 618. The court below gave clear and full instructions to the jury as to what constituted probable cause, but left it for them to say whether or not there was such probable cause for the defendant’s action in bringing the prosecution against the plaintiff. Defendant made three several informations against the plaintiff and had him arrested three several times. Upon the first arrest he was discharged by the alderman and, although an action for malicious prosecution had been brought by the plaintiff against the defendant for this arrest, which had been, previously to the trial of this case, determined by a jury, the fact of the arrest was admitted for the purpose of throwing light upon the questions of probable cause and malice in the present case. A year or more after the first arrest, a second information and ar [379] rest were made, in which, after a hearing upon a writ of habeas corpus, the plaintiff was discharged by the court. Upon the same day the defendant made a third information upon which the plaintiff was arrested and bound over for his appearance at the next term of the quarter sessions at which the bill was ignored. Defendant attempted to justify these several informations and arrests on the ground that they were advised by his attorney, with whom he consulted in regard to them. The rule governing in such a case is well laid down in Fry v. Wolf, 8 Pa. Superior Ct. 468, as follows: “ If, in good faith, the prosecutor seeks, obtains and honestly follows the advice of competent counsel, on a full and fair statement of all the facts within his knowledge or which he has reason to believe he is able to prove and omits none, which with reasonable diligence he could ascertain or discover, the advice so received will constitute a defense to the action: Beihofer v. Loeffert, 159 Pa. 374; Barhight v. Tammany, 158 Pa. 545; McClafferty v. Philp, 151 Pa. 86. Such advice is sometimes called probable cause, but in strictness it rebuts the inference of malice arising from want of probable cause: McCarthy v. DeArmit, 99 Pa. 63.” Defendant also assumes that there was no contradiction of the fact that he brought - himself within the provisions of this rule, but the fact was contradicted. Indeed the testimony of both the defendant and his attorney makes it doubtful whether the jury could have found that all the essentials of the rule had been complied with. A single illustration, based upon an important fact in the case, will suffice to show the failure in this regard. The plaintiff was discharged after a hearing, upon a habeas corpus, in the morning. An information was made the same day, upon which the plaintiff was rearrested. Did the defendant inform his counsel, who testified that he was not present, of the discharge of the plaintiff upon that hearing ? That was an essential fact which must have been known and which, if not known by the defendant, could have been easily ascertained. It may well be doubted whether other facts of equal importance were so made known. It was for the jury to say whether or not they had been. Their verdict shows they evidently believed they were not. The testimony justifies such a finding. The case throughout was carefully tried. The defendant [380] had-his rights fully guarded in the presentation of his defense. The trial judge answered the important points for charge, in the main, in the exact language of our appellate courts. The questions of fact, and nothing but questions of fact, were left for the consideration and finding of the jury. Their disposition of them, under the entire testimony, which was by no means one-sided, cannot be disturbed. The judgment is affirmed.