Redman v. Hudson

Wood, J. Appellee sued appellant for malicious prosecution, alleging that appellant maliciously and without probable cause made an affidavit before a justice of the peace charging appellee with the crime of perjury committed in a certain cause before a justice of the peace wherein appellant was plaintiff and- appellee was defendant ; that upon the affidavit of the appellant appellee was arrested and brought before the justice and committed to jail, where he remained for a long time before he was able to 'give bail for his appearance; that upon a trial before the justice for the crime charged against him in the affidavit he was acquitted. Plaintiff laid his actual damages at $1,500 and punitive damages at $1,500. The appellant answered, denying specifically the allegations of the complaint and -setting up that he did not make any affidavit as alleged, charging the appellee with perjury, but that he signed a statement which charged appellee with committing perjury, as alleged in appellee’s complaint. Appellant further set up that he believed appellee had committed perjury and submitted all the facts to a reputable attorney, one learned in the law, and that such attorney advised appellant that appellee was guilty of perjury, and that, acting upon such advice, appellant signed the statement charging appellee with perjury, but that he did not -swear to the statement. Appellant alleged that he set- forth the facts in a statement, which he believed constituted perjury, and that this -statement was-signed by the prosecuting-attorney and not by appellant; that the appellee was tried upon this signed statement by the deputy prosecuting attorney and not upon any statement that was signed by appellant accusing appellee of perjury. It could -serve no useful purpose to set out in detail and comment upon the evidence that was adduced at the trial. Such of it as may be necessary to comment on will be referred to in the opinion. Appellant urges reversal for alleged errors in the rulings of the court in giving certain instructions on its own motion and in refusing certain prayers for instructions requested by appellant, and in the admission of certain testimony. In the second instruction, given on its own motion, the court told the jury that the appellee was prosecuted upon an affidavit made by the appellant and that such prosecution terminated in the discharge of the appellee by the justice before whom the prosecution was pending, and that such discharge constituted a prima facie showing that the appellee was not guilty of the crime of perjury as charged by appellant. The justice of the peace testified that the appellant vmade an affidavit before him charging the appellee with the crime of perjury; that on such affidavit he issued a warrant, and his recollection also was that he issued a commitment; that appellee was arrested on the warrant and was afterwards brought into his court and the charge of perjury against the appellee was investigated and he was acquitted of this charge. He further testified that the affidavit was amended at the beginning of the trial, and the prosecuting attorney was present at the time. Witness Lighter, for the appellee, testified that he had been a practicing attorney for eight years and making a specialty of criminal law; that he wrote the affidavit that the appellant signed, but that appellant did not swear to it. Witness wrote out the affidavit at the ,request of the justice. Appellant told the justice that he (appellant) wanted to make an affidavit, and the justice asked witness to write it out; that appellant signed the affidavit, and that the amendment was made on the original affidavit over appellant’s signature, and appellant was present when the amendment was made and raised no objections to it. Witness Watrous testified that he was deputy prosecuting attorney and did not think that he signed the affidavit after it was amended, but did not remember. The appellant testified that at the time he signed the statement accusing appellee of perjury he .believed he was guilty of perjury and still believed that he was. His testimony as abstracted does not show that he denied making the affidavit as testified to by the justice. It thus appears that the uncontroverted testimony shows that appellant made an affidavit before a justice of the peace upon which the prosecution for perjury was based, and that tbe justice, after investigating the charge, acquitted the appellee. (1) The court, therefore, did not err in giving instruction No. 2, as the facts upon which this instruction was predicated were undisputed, and such being the case the court correctly told the jury as a matter of law that the discharge of the appellee by the justice constituted a iprima facie showing that he was not guilty of the crime of perjury as set out in the affidavit. The instruction, in the form given, was the same in effect as if the court had told the jury that the facts as stated constituted a prima facie showing that there- was no probable cause for the prosecution instigated by appellant against the appellee -for the crime of perjury. It will be observed that the instruction does not tell the jury that the facts stated therein show that the appellee was not guilty of perjury, but only declared that the facts as stated constituted a prima facie showing of his innocence. The instruction was correct. See Wells v. Parker, 76 Ark. 41-43. Instruction No. 4 is as follows: “If you find from the evidence that the defendant did prosecute or cause to procure the prosecution of the plaintiff as alleged in this complaint, and that it was without probable cause, you will find for the defendant, unless it was shown by the evidence that such prosecution was malicious.” (2) This instruction was inaptly drawn and, to say the least, was ambiguous. Counsel for appellant contends that the instruction told the jury that they must find for the appellee if the prosecution of him by the appellant for perjury was malicious. But when the instruction is carefully analyzed it will be seen that such is not its meaning. On the contrary, the effect of the instruction was to tell the jury that before the plaintiff could recover it was necessary for him to prove both a want of probable cause for the prosecution and also that the prosecution was malicious, for the first part of the instruction told the jury that the verdict should be for the defendant if the prosecution was without probable cause, unless it was also shown to have been malicious, which was equivalent to saying that if the plaintiff only proved a want of probable cause for the prosecution he could not recover against the defendant, but that he must also show that the prosecution was malicious. (3) The objection urged by counsel relates purely to the verbiage of the instruction and not to its substance, and therefore counsel should have made a specific objection to the instruction. The court, in its first instruction, told the jury: “that in order for the plaintiff to recover against the defendant he must prove by a preponderance of the' evidence: (A) that he was prosecuted in a criminal action substantially alleged; '(B) that the prosecution was instigated or procured by the defendant; (C) that the prosecution terminated in the acquittal or discharge of the plaintiff; (D) that it was without probable cause; and, (E) that it was malicious.” This instruction clearly told the jury that ^before there could be any recovery the plaintiff must show that the prosecution against him was without probable cause and that it was malicious. In other words, that it required proof of both to warrant a recovery of damages for malicious prosecution. The fourth instruction was manifestly intended to emphasize this idea, and when it is read in connection with the first, the jury could not have been misled thereby. (4) Instructions must be considered as a whole, and if, when so considered, they present a harmonious charge and correctly declare the law, independent portions of the charge will not be condemned because they contain, when standing alone, some inapt expressions or ambiguous statements. A cause will not be reversed if the charge as a whole is free from error. St. Louis, I. M. & S. Ry. Co. v. Rogers, 93 Ark. 564; St. Louis, I. M. & S. Ry. Co. v. Carter, 93 Ark. 589; St. Louis. I. M. & S. Ry. Co. v. Lamb, 95 Ark. 209; Slim and Shorty v. State, 123 Ark. 583. See also cases collated in Vol. V. Crawford’s Dig., 848 G, et seq. Appellant’s prayers for instructions which the court refused were fully covered in the instructions which the court gave. The instructions of the court correctly declared the law, and to have given appellant’s prayer would have been but a repetition of the same principles in different words. Among other instructions given by the court was the following:- Number 8. “If the defendant caused or procured the prosecution of the plaintiff, and you believe from the evidence before doing so he used reasonable diligence to ascertain the truth, and fairly and fully com.-municated to counsel, J. D. Lighter, all the facts within his knowledge, and that in instigating and causing the prosecution of plaintiff, if the evidence shows that he did so, and that he acted in good faith upon the advice of counsel, you will -find for the defendant. ’ ’ The appellant testified that he went to see Lighter and made a full, fair and complete statement of all the facts in regard to what Mr. Hudson had sworn and all the facts brought out in court at the trial of the civil suit, and that Mr. Brackett was also with him at the time and that Mr. Lighter told him that under his statement Hudson was guilty of perjury; that at the time he signed the statement accusing Hudson of perjury he believed that he was guilty of perjury and still believed that he was; that he told Lighter all he knew about the case. Brackett testified that he went to Mr. Lighter’s house with Mr. Redman, and while there told Mr. Lighter that he did not owe Hudson anything and that he did not stand good for groceries to Redman for Hudson, and that Mr. Lighter advised Redman, in=witness’ presence, that in his (Lighter’s) opinion, Hudson had committed perjury. But Lighter did not advise Redman to prosecute Hudson at all. Lighter testified that after the civil suit was disposed of, Redman came to his house with Brackett, and while there they explained all the facts connected with that suit and the controversy, and after they had explained all the facts witness, as an attorney, advised Red-man that Hudson had committed perjury; that he did not .advise Mr. Redman to file the affidavit or to start a prosecution; but only advised him that from all the facts in the case Mr. Hudson had committed perjury in the suit wherein Mr. Redman had sued Mr. Hudson. Appellee permitted these witnesses to testify without objection that they explained all the facts connected with the civil suit to Mr. Lighter, the attorney; that appellant made a full, fair, free and complete statement in regard to what Hudson had sworn to and all the facts brought out in the civil suit. As appellee did not object to the testimony in this form, and did not demand that the witnesses state what facts they told Lighter, this was tantamount to an acquiescence on his part that appellant had made in good faith a full statement of the facts to the attorney. It must be taken, therefore, as the testimony is presented in the record, that appellant stated to Lighter what the testimony of Hudson was on the trial of the civil suit and what his own testimony was, and that Red-man made a full, fair, free and complete statement of all the facts in regard to what Mr. Hudson had sworn to and all the facts brought out in court at the trial of the civil suit. It must be held, therefore, that there is no conflict in the evidence on the issue as to whether or not the appellant made a full and complete statement of all .the facts as they were brought out both by the appellant and by the appellee on the trial of the civil action, to the attorney. Lighter, before instituting the nrosecution against the appellee for perjury, and the evidence is undisputed that Lighter advised the appellant, after hearing the statement of these facts, that appellee had committed perjury. (5-6) The general rule is that where there is a substantial dispute as to what the facts are, it is for the jury to determine what the truth is, and whether the circumstances relied on as a charge or justification, are sufficientlv established. But. where the facts are undisputed', whether they are sufficient to constitute a probable cause is a question exclusively for the court. 26 Cyc. 106-7-8. It is the well /settled doctrine of this court that where one lays all the facts in his possession before an attorney learned in the law, and acts upon the advice of such attorney in instituting the prosecution, this is conclusive of the existence of probable cause, and is a complete defense in an .action for malicious prosecution. Price Merc. Co. v. Cuilla, 100 Ark. 318; Kansas & Texas Coal Co. v. Galloway, 71 Ark. 351. See also, St. Louis, I. M. & S. Ry. Co. v. Wallin, 71 Ark. 422; Price v. Morris, 122 Ark. 382; 183 S. W. 180; Laster v. Bragg, 107 Ark. 74. (7) The testimony of appellant was to the effect that he believed at the time he instituted the prosecution against the appellee for perjury that he was guilty of perjury. Whether the appellee was in fact guilty of perjury or not, if the appellant believed that he was, and so believing, made a full and complete statement of all the facts to the attorney, Lighter, and acted upon the latter’s opinion in instituting the prosecution, then appellant would have probable cause and a complete defense. There is nothing in this record to warrant a finding that appellant did not make a full and complete statement of the facts to the attorney and that the attorney did not advise him that appellee was guilty of perjury and that he did not act in good faith upon such advice. The testimony on this issue, as to whether or not appellant had probable cause, being undisputed, the court could have so instructed the jury as matter of law. However, as the court submitted this issue to the jury, their verdict on the issue was contrary to the undisputed evidence. One ground of the motion for a new trial was that the verdict of the jury was contrary to the evidence. The court, therefore, erred in not' setting aside the verdict and granting a new trial on this ground. (8) The court refused to permit appellant to testify that he consulted with a justice of the peace and told him all about the facts which constituted the prosecution •against the appellee for perjury. It is not shown that the justice of the peace was a lawyer and he therefore could not be classed as one learned in the law and capable of giving appellant advice upon which he could be justified in instituting the prosecution against the appellee for perjury. Appellee testified to the effect that after he was arrested on the warrant charging him with perjury he was put in jail and that the inmates made fun of him and greatly humiliated him; that it was the first time he was ever in jail; that his wife was sick at the time and he had no way to communicate to her and did not have any way to get out and make bond; that he suffered great mental pain and anguish while in jail; that he was greatly humiliated after he was released from custody by his neighbors and friends and his neighbor’s children referring to the fact that he had been in jail. The appellant moved to exclude all this testimony, which the court refused and to which ruling the appellant excepted, and makes this ruling one of his grounds for a new trial. (9) The insults that were offered to appellee while in jail were not competent to enhance his measure of damages. The appellant had no control over the jailer and it was the jailer’s duty to see that the prisoners in his custody received proper treatment. That appellee was not treated with proper consideration by the inmates of the jail was the fault of the jailer and testimony to the effect that appellee was humiliated on account of the treatment he received by the inmates of the jail is too remote to be considered as an element of damages. See 26 Cyc., pp. 102-3, note 78; John Zebley, Jr., v. John W. Story, 117 Pa. St. 478. (10) The testimony in regard to the humiliation that appellee was subjected to by reference being made to the fact of his prosecution and imprisonment, by his neighbors was competent as these were but the natural and probable consequences to be anticipated from such prosecution. See 26 Cyc. 102, and cases cited in note 76. (11) Motion, was made to exclude the testimony as a whole. The court did not err, therefore, in overruling the motion. To have had the benefit of a ruling appellant should have moved the court specifically to exclude that part of the testimony which was incompetent. See Kansas City So. Ry. Co. v. Leslie, 112 Ark. 305. Moreover, the only effect this testimony could have had would have been to enhance the damages, and inasmuch as the appellant does not claim that the verdict was excessive either for 'actual or punitive damages, and did not make excessiveness of the verdict one of the grounds in his motion for a new trial, no reversible error could be predicated upon the ruling of the court in admitting the above testimony. For the' error indicated, the judgment is reversed and the cause is remanded for a new trial.