Smith v. Federal Rubber Co.

Siebecker, J. It appears that Henry, an employee of the defendant company, on February 7-, 1918, confessed to stealing tires to Mr. Lauer. This confession was taken down in shorthand by his stenographer. The chief of police of the city of Cudahy was present, at Mr. Lauer’s request. On the following day Brownell also confessed to being implicated in this theft. At this time Henry gave additional details of how the tires were taken, disposed of, and to whom they were sold. In the statement of Henry he declared that some of the tires so stolen were sold to Dr. Smith, the plaintiff in this action. Brownell at this conference confirmed Henry’s statement that a pair of tires were sold to Dr. Smith. On February 9th the chief of police of Cudahy and Mr. Lauer presented the confessions and other matters to Mr. Zabel, district attorney of Milwaukee county, and, upon inquiry by Zabel, the chief of police of Cudahy informed him how the confessions were secured. Mr. Zabel thereupon had complaint made and secured the arrest of .Henry and Brownell, who were being held in custody by the chief of police. On February 11th the district attorney and two assistants went over the confession in the presence of Henry, Brownell, Lauer, and others at the district attorney’s office. Mr. Zabel questioned Henry and Brownell concerning the confessions and went into the details of the transactions of obtaining the tires, the quantity taken, to whom and the manner in which they had sold them, and obtained the names of the persons who bought the tires at a greatly reduced price. Mr. Zabel testified: [500] “After the confessions were presented to me- and after I had examined Mr. Brownell and Mr. Henry ... I advised the taking out of warrants for the arrest of Brownell and . . . Henry and for the arrest of the various persons to whom these two men admitted having disposed of stolen tires, including a warrant against Dr. Smith.1’ The district attorney also stated that he informed Mr. Lauer that the purchaser committed a crime and that “they are all equally guilty, they are representative business men and they ought to know better. They don’t ordinarily transact their business in this way.” The assistant district attorney also advised Mr. Lauer that the purchasers had committed an offense and that the confessions of Henry and Brownell sustained the charge that Dr. Smith had knowingly bought stolen tires. It appears that Mr. Zabel informed Mr. Lauer that it was his duty to institute criminal proceedings against Dr. Smith and other purchasers of tires by swearing to the criminal complaint. The record shows that Lauer made a full and complete statement of the facts within his knowledge concerning the whole affair to the district attorney and his assistant before he signed the criminal complaint against Dr. Smith. It is a well established rule by the adjudications of this court that in ap action for malicious prosecution, if a person makes a criminal complaint upon the advice of a reputable attorney, after a full, fair, and honest statement to such attorney of all the facts and information within his knowledge, honestly believing the person charged to be guilty, he has probable cause, as a matter of law, for his action. King v. Apple River P. Co. 131 Wis. 575, 111 N. W. 668; Topolewski v. Plankinton P. Co. 143 Wis. 52, 126 N. W. 554; Small v. McGovern, 117 Wis. 608, 94 N. W. 651. The nature and effect of such a defense in this class of actions was fully treated in the King Case and requires no further elaboration here. It is there stated: “The term ‘full and fair statement of all the facts’ does [501] not mean all the facts discoverable, but all the facts within the knowledge of the person making the statement. If he knows facts enough, either personally or by credible information, which, when fully and fairly stated to reputable counsel for the purpose of obtaining legal guidance, results in advice which is honestly followed in commencing the criminal proceedings, that is sufficient.” The record in this case is clear that Mr. Lauer made a full and fair statement of all the facts and itiformation within his knowledge to the district attorney; that he believed that the plaintiff was guilty, and that he was advised by the district attorney that the facts constituted good legal ground for commencing criminal prosecution against plaintiff, and that he in good faith followed such advice. The respondent strenuously insists that the defendant failed to establish the defense of advice of counsel as probable cause, because Mr. Lauer did not state before swearing to the complaint that he had learned upon inquiry that Dr.- Smith was the associate of good and reputable persons and that he, Lauer, believed from what he learned about him that Dr. Smith was a man of good character and standing in the community. This contention is of no avail in this case, for two reasons: first, that it is manifest thaf the district attorney advised him specifically that facts and circumstances communicated were • in themselves a good and sufficient ground for commencing the criminal action; and secondly, that the district, attorney evidently proceeded upon the belief ■that Dr. Smith had a good standing in the community, for he declared of him and the rest that those who purchased the stolen tires were representative business men who ordinarily did not transact their business in this way. We are of the opinion that the trial court clearly erred in holding that the defense of advice of counsel was not established as a matter of law. It is considered that the record clearly establishes that Mr. Lauer signed the criminal complaint upon the advice and direction of the district attorney after he had fully, fairly, and honestly stated to [502] him all the facts and information within his knowledge, which the district attorney deemed sufficient to show that Dr. Smith bought the, tires knowing them to be stolen property, and that Lauer honestly believed Dr. Smith guilty of violating the law as advised by the district attorney. Upon this state of the case it was error to. award judgment against the defendant. By the Court. — The judgment appealed from is reversed, and the cause remanded with directions to award judgment dismissing plaintiff’s complaint.