71 Wash. 155 | Wash. | 1912
This action was commenced by Ida M. Anderson against Seattle Lighting Company, to recover damages for malicious prosecution. From a judgment in her favor, defendant has appealed.
Numerous assignments of error are presented, a number of which would require a reversal, but we will only consider appellant’s contention that the trial court erred in denying its motions for a directed verdict and for judgment notwithstanding the verdict. The following undisputed facts are
In an action for damages for malicious prosecution, the burden devolves upon the plaintiff to show, that he has been acquitted of the charge or that it has been finally dismissed;
The rule is well settled by the great weight of authority that, when a prosecuting witness truthfully, fairly and fully presents to a competent practicing attorney all facts within his knowledge, and the attorney on consideration thereof advises a prosecution, such advice will protect the prosecuting witness from liability in an action for malicious prosecution, and that it will be held that probable cau^e existed. This must be so, for if a citizen who has just cause to believe, and honestly does believe, that a crime has been committed, after taking such precautions, cannot be protected from liability for damages, it would follow that a conviction would have to be guaranteed in every criminal prosecution, and that the criminal law would in many instances fail of enforcement. The criminal law should be enforced in order that peace and good order may be preserved. By reason of these considerations, actions to recover damages for criminal prosecution are not favored by the courts, although they are, and should be, sustained when want of probable cause and malice are clearly shown..
In Simmons v. Gardner, 46 Wash. 282, 286, 89 Pac. 887, we said:
“Although it is conceded that the respondent was arrested at the instance of the appellants, and that he was afterwards*158 finally discharged, the burden is on him to further show that the criminal prosecution was instituted (1) without probable cause, and (2) with malice. Both of these elements must exist as a condition precedent to a recovery by him. Want of probable cause without malice is of no avail; nor will malice of itself be sufficient if probable cause be shown. It therefore follows that if probable cause did exist in this case, the respondent can in no event recover.”
In the same case we quoted with approval the following language from Anderson v. Friend, 85 Ill. 135, which is especially pertinent here:
“It has been uniformly held that, where the prosecutor fairly presents all the facts to a respectable practicing attorney, who, from such a statement of facts, advises they are sufficient to warrant a prosecution, the prosecutor is protected against a suit for malicious prosecution, and, from the very nature of our criminal laws, it must be so, otherwise there would be no safety in originating such proceedings. But few persons outside the profession can determine, in many cases, whether the facts will justify a criminal conviction ; but it is to be presumed that all respectable attorneys in full practice do know, and it is their duty to fairly and honestly advise in these as in all other cases; and if a prosecutor may not safely act upon such advice, then he has to almost guarantee a conviction when he starts a prosecution. The criminal law must be enforced, and human agencies must be employed for the purpose, and the law wisely protects all persons who in good faith act on reasonable presumptions of the guilt of the accused; and where the prosecution is commenced on the advice of respectable counsel, after fairly presenting to his consideration all the facts, and he advises that they are sufficient, it cannot be held the prosecution is groundless and there is a want of probable cause.”
If Carson truthfully communicated to appellant’s attorneys and to the prosecuting attorney all facts and circumstances within his knowledge, then the issue of the existence or nonexistence of probable cause was a judicial question for the court. If, on the other hand, any issue of fact existed, under all the evidence, as to whether he did truthfully and
The facts above stated were truthfully and fully communicated to the attorney by Carson. They tended to show, that gas was being used by respondent for which she was not compensating appellant; that it was being done through an existing unlawful connection, without being registered by appellant’s meter; that neighbors advised Carson the gas was being stolen; that, as the result of such information, he discovered the unlawful connection, the existence of which respondent admitted, when discovered, although she then insisted that she had no knowledge of its existence. These facts were communicated to the attorneys and it would seem from such statements that appellant and the attorneys had good ground for believing the law had been violated. The attorneys were not bound to ignore the fact that respondent was using gas which did not pass through the meter, nor were they compelled to discredit the statements of appellant’s trusted employees or the statements of the two neighbors who had given him the information which led to the discovery, and upon which he acted.
Respondent insists that Carson did not make a full, complete, and truthful statement, to the prosecuting attorney of all facts that had come to his knowledge, or of all information that he had obtained. In support of this contention it is insisted that Carson stated he had examined respondent’s premises about one year previous to his discovery of the unlawful connection, and that no such connection then existed. There was evidence that the meter was installed in a hall upon respondent’s premises, and that the unlawful connection passed through the wall to an adjoining room and to a pipe which supplied nonregistered gas' to- several rooms. Respondent produced witnesses who testified that the gas pipe,
We are further compelled to hold that no malice was shown. Respondent testified that she never saw or knew Carson until he called her attention to the unlawful connection, and that she saw him but once thereafter prior to her arrest. None of the appellant’s officers knew respondent, and the record is devoid of evidence of malice on the part of Carson, or any employee of appellant. Even though the evidence had been sufficient to make a prima facie showing of want of probable cause, yet in Ton v. Stetson, 43 Wash. 471, 86 Pac. 668, speaking of malice, we said:
“While it is true that in some cases, where the evidence is sufficient to show a want of probable cause, malice may be*161 inferred, it is not an invariable rule that it must necessarily be inferred. It would be a harsh rule to hold that, where the evidence was merely sufficient to make a prima facie showing of want of probable cause, malice must necessarily be inferred therefrom. If, in connection with the prima facie showing of want of probable cause, affirmative, acts of the respondent had been shown disclosing the least feeling of bitterness, animosity or vindictiveness towards the appellant, then it might be that an inference of malice would be justified sufficiently to require the denial of a nonsuit. In this case there is an utter absence of any such showing. The parties were not acquainted with each other even in the slightest degree.”
On the record before us we find no evidence which would sustain a finding of malice. The motions for a directed verdict and for judgment notwithstanding the verdict should have been sustained.
The judgment is reversed, and the cause remanded with instructions to dismiss.
Mount, C. J., Chadwick, Parker, and Gose, JJ., concur.