Price v. Morris

Hart, J. (after stating the facts.) (1) As we have already stated, there was not only testimony from which the jury might have inferred legal malice but even express malice. Want of probable cause and malice, combined, are essential !in order to maintain a suit for malicious prosecution. If either of these is wanting the action must fail. (2-3) Malice generally may be inferred from the evidence of want of probable cause; but the converse of the proposition can not be sustained. Absence of probable cause is absolutely essential to sustain an action for malicious prosecution. No matter how much or what kind of malice may actuate the prosecutor, if he has probable cause to believe the defendant guilty, he is justified in taking the matter before the court. Mod. Am. Law, Vol. II, p. 297; Wheeler v. Nesbitt, 24 How. (U. S.) 544; Thompson v. Beacon Valley Rubber Co., 56 Conn. 493; Hamilton v. Smith, 39 Mich. 222. In the case last cited the court said: “Malice may be proved by direct evidence or it may be inferred from circumstances; and, generally, it may be inferred from the "want of probable canse, though the latter ean never be presumed or inferred from the most express malice.” In the first mentioned case the Supreme Court of the United States, in .discussing the question, said: “Malice, alone, however, is not sufficient to sustain the action, because a person actuated by the plainest ■malice may, nevertheless, prefer a well founded accusation, and have a justifiable reason for the prosecution of the charge. Want of reasonable and probable cause is as much an element in the action for a malicious criminal prosecution as the evil motive which prompted the prosecutor to make the accusation, and though the averment is a negative one in its form and character, it is, nevertheless, a material element of the action, and must be proved by the plaintiff by some affirmative evidence, unless, the defendant dispenses with such proof by pleading singly the truth of the .several facts involved in the charge. Morris v. Corson, 7 Cow. 281. Either of these allegations may be proved, by circumstances, and it is unquestionably true that want of probable cause is evidence of malice, but it is not the same thing; and unless it is shown that both concurred in the prosecution, or that the one was combined with the .other in making or instigating the .charge, the plaintiff is not entitled to recover in an action of this description. Accordingly it was held in Foshay v. Ferguson, 4 Den. 619, that even proof of express malice was not enough without showing, also, the want of probable cause; and the court go on to say, that however innocent the plaintiff may have been of the crime laid to his charge, it is enough for the defendant to show that he had reasonable grounds for believing him guilty at the time the charge was -made. Similar views were also expressed in Stone v. Crocker, 24 Pick. 83. There are two things, say the court in that case, which are not indispensable to the support of the action, but lie at the foundation of it. The plaintiff must show that the defendant acted from, malicious motives in prosecuting him, and that he had no sufficient reason to ¡believe him to ¡be guilty. If either of these be wanting, the action must fail; .and so are .all the ¡authorities from, a very early period to the present time. Golding v. Crowle, Sayer 1; Farmer v. Darling, 4 Burr. 1, 974; 1 Hilliard on Torts, 460. “It is true, as before remarked, that want of probable cause is evidence of malice for the consideration of the jury; but the converse of the proposition cannot be sustained. Nothing will meet the -exigencies of the case, so -far ias. respects the allegation that probable cause was wanting, except proof of the fact; and the onus probandi, as well remarked in the ¡case last referred to, is upon the plaintiff to prove affirmatively by circumstances or otherwise, as he may be able, 'that the defendant had no reasonable ground for commencing the prosecution. Purcell v. McNamara, 9 East 361; Williams v. Taylor, 6 Bing. 184; Johnstone v. Sutton, 1 Term. 544; Turner v Ambler, 10 Q. B. 257.” (4) We have held that proof that defendant acted upon the advice of counsel learned in the law or upon the advice of the public prosecutor given after a full and fair statement of all the known facts, will be a complete defense ¡to an action for malicious prosecution, because it is conclusive evidence of the existence of probable cause. Laster v. Bragg, 107 Ark. 74, and cases cited; St. L., I. M. & S. Ry. Co. v. Wallin, 71 Ark. 422. It is not necessary to determine whether the facts stated in the affidavits of Medlin and Kennedy constitute a crime under the postal laws of the United States, or whether the opinion expressed by the district attorney was erroneous; for the advice -of counsel, honestly given after a full disclosure of the facts, is a complete defense. Kansas and Texas Coal Co. v. Galloway, 71 Ark. 351, and authorities cited above. It is earnestly insisted by counsel for the defendants that the .statements to the attorneys were truthful, full and 'Complete, giving all the material facts and circumstances within the knowledge or information of defendants ; and that the existence of probable -cause became a question of law for the court which should not have been submitted to the jury. They contend, therefore, that the court erred in not directing /a verdict for them. In this contention we think they are correct. As we have already seen probable cause is ia 'Complete defense to the action. (5) The district attorney stated that he advised the institution of the prosecution against Morris upon the facts contained in the affidavit of Medlin iand Kennedy. It was proved that the facts contained in these affidavits were true. The district attorney testified that he believed at the time that the appellant was guilty under the facts stated to him and that he still held to that opinion. There is nothing whatever in the record to impeach or contradict him in this respect. The undisputed evidence showed that he acted upon the'information given him by the facts contained in the affidavits above referred to, and that he acted in good faith in instigating the prosecution, believing the facts stated to him constituted a violation of the postal laws. As we have already seen, in an action for a malicious prosecution if probable cause is found to exist, no amount of malice will entitle a plaintiff to a verdict. The undisputed evidence shows that the defendants laid before the district attorney all the material facts in their possession and that the prosecution was instituted upon the district attorney’s advice, given in good faith. Under our decisions, this is conclusive evidence of the existence of probable cause and is a complete defense to an action for malicious prosecution. The record shows that the case has been fully developed and no useful purpose could be served by remanding the cause for a new trial. Therefore, for the error in not directing a verdict for the defendants, the judgment must be reversed and the cause of action dismissed.