Clark v. Baldwin

The opinion of the court was delivered by Horton, C. J.: Two objections are urged against the judgment. One is, that lihe evidence is insufficient to justify the verdict; the other is, that the damages allowed by the jury are excessive. Of these in their order. It was said by Mr. Justice VALENTINE, speaking for the court, in Dolbe v. Norton, 22 Kas. 105, that “where a person acting in good faith, and under the advice of counsel learned in the law, mistakenly institutes a prosecution against another person who is not liable, and the prosecution fails, the prosecutor docs not thereby render himself liable to an action for malicious prosecution, or to any other action.” And plaintiff in error now insists under this principle, t.hat as all the steps taken by him were upon the advice and direction of his counsel, and as the testimony [126] upon this point was not disputed or contradicted, the verdict ought to have been given in his favor. Underlying the question of the advice of counsel as enunciated in Dolbe v. Norton, supra, is the further principle, that such advice, to relieve liability, must have been given upon a full and fair statement of the case. Where the' prosecutor does not state the whole, facts of his case to his counsel he is not acting in good faith, and the advice is no protection to him. Plaintiff in error testified: “I talked with several business men about him [John Baldwin], but none of them know him except Sanford Topping, who told me that he had known Baldwin for some time; and from the conversation with him I was led to believe that Baldwin was just such a man as would keep the package if he had got it into his possession. ... I then laid all the facts I had heard from-and Topping before my brother, Wm. H. Clark, an attorney, and stated to him the fact of the loss of the package.” Wm. H. Clark testified, among other matters: “That he was an attorney; that he had been in practice for fourteen years in Kansas; that plaintiff in error stated to him the fact of the loss of the express package; and that he had learned about John Baldwin living at Pomona, and what J. E. Parkinson, the stage driver, and Sanford Topping had told him, as he [plaintiff in error] had testified to in this case.” From this evidence it is clear that Wm. H. Clark was led to believe from the statements of the plaintiff in error that he had learned from Sanford Topping that Baldwin was a bad man, and that he was just such a-man as would keep a package of money, if he got it by mistake into his possession. The truth is, Sanford Topping, according to his evidence, gave to Baldwin such a good character in his conversation with plaintiff in error, before the prosecution was begun, that in view of the meager evidence against Baldwin, we might more appropriately say, in view of the scanty suspicion against him, Topping’s opinion and knowledge of Baldwin ought to have been fairly stated to counsel, to be considered [127] by him along with the statements and opinions of the stage driver. Topping testified he had a conversation with Clark before the prosecution, and said to Clark: “ He had known John Baldwin for some time, and so far as he knew he was a straight, honest man, and was all right; that Clark asked him if Baldwin got an express package of $175, by mistake, if he thought he would return it, and he told him he thought he would.” Plaintiff in error’s belief in Baldwin’s guilt rested upon the fact that the latter lived in Franklin county at the time the fraud was practiced upon him ; that his name happened to be John Baldwin, and the statement of the stage driver that he had seen Baldwin coming to Ottawa about December 1st, and the opinion of the stage driver that he was a man of thriftless habits. The good opinion in which Baldwin was held by so prominent and respected a citizen as Sanford Topping was therefore of importance. It. would have at least overcome the opinion of the stage driver, who had less acquaintance with Baldwin than Topping; and if the opinion of the stage driver was given to counsel, the opinion of. Topping ought to have been given also. It is true that there is a conflict between Topping and Clark as to the conversation between them before the prosecution; but the jury were the judges of the credibility of the witnesses and of the facts, and we must assume that they relied upon the evidence of .Topping. It is quite likely they supposed, as Topping was not an interested party in the action, it was the safest to take his - recollection as correct. Between witnesses equally credible and having equal means of information, the evidence of a party in no way interested in the result of the action is generally the best guide for the jury, when the evidence of such witnesses conflicts. The contradiction between Topping and Clark, fully shows, if Topping is to be credited, that Topping was incorrectly reported to counsel; therefore, that plaintiff in error did not state the whole facts of his case to his counsel. The jury, upon the whole evidence, must have come to this conclusion, and if they did, the defense of advice of counsel utterly failed. If [128] state meats to counsel are not fairly made, the advice given will be no protection to a defendant for the wrongful prosecution of a plaintiff. The damages assessed were only $100. We cannot hold them excessive. Indeed, if the jury had returned a much larger verdict, we would not be at liberty to interfere on account merely of the assessment of damages. The plaintiff, under all the circumstances, may congratulate himself for not being mulcted in a greater sum. Even in assessing compensation for the injury sustained, the jury were authorized to estimate actual expenses, “injury to feelings, mental anguish, and tarnished honor.” (Malone v. Murphy, 2 Kas. 250.) As the evidence showed the defendant in error was falsely accused of a felony, was compelled to incur actual expenses of $20, was in jail nearly three full days, contracted a severe cold while imprisoned, and suffered ill-health in consequence, we regard one hundred dollars very reasonable. The judgment of the district court must be affirmed. All the Justices concurring.