Birdsall v. Smith
122 N.W. 626
Mich.
1909
Check Treatment
Hooker, J.

The plaintiff, a vendor of milk, was prosecuted upon the complaint of defendant Howe for selling adulterated milk. Being acquitted upon a trial, he brought this action for malicious prosecution against Howe and two other defendants. The learned circuit judge directed a verdict for defendants upon the grounds:

*392(1) That the plaintiff had failed to prove a ‍​​​​​‌‌​‌‌‌‌​‌‌‌​​‌​‌‌‌‌‌​‌​​​‌​‌‌‌‌‌​‌​​​​‌‌​‌​‍want of probable cause for the complaint.

(2) That there was no evidence tending to show a conspiracy between the defendants to wrongfully prosecute.

(3) That, there being no proof of a want of probablе cause, ‍​​​​​‌‌​‌‌‌‌​‌‌‌​​‌​‌‌‌‌‌​‌​​​‌​‌‌‌‌‌​‌​​​​‌‌​‌​‍the question of defendant’s motives was unimportant.

Defendant Howe was employed in the office of thе dairy and food commissioner at Lansing, the other defendants were local food inspectors acting under appointment by the commissioner. Howe had no acquaintance with either of the other defendants. His connectiоn with the case began with a direction from the dairy and food commissioner to go to Grand Rapids and make a cоmplaint against plaintiff, based upon a report of an analysis of a certain quantity of milk sold by .the plaintiff, and statеd in the report as contained in a half-pint bottle, which said report, made by the State analyst, showed to be adultеrated. His action in the matter ended by his drawing, subscribing, and swearing to the complaint and filing it with the justice, who presumably took such testimony as may have been presented, and issued the warrant upon which plaintiff was arrested. There is an absenсe of testimony tending to show Howe’s connection with any conspiracy to wrong plaintiff, and there is no testimony indicаting that he did any further or other act in the premises than as hereinbefore stated, or that he had or took any pеrsonal interest in the matter. As to him, the only question that need be considered is whether the undisputed evidence shows that there was probable cause. As there is no conflict in relation to the facts, this was a question for the court to decide, and he correctly held that it failed to show a want of probable cause. See Rankin v. Crane, 104 Mich. 6 (61 N. W. 1007); Fine v. Navarre, 104 Mich. 93 (62 N. W. 142); Rogers v. Olds, 117 Mich. 368 (75 N. W. 933). Moreover, it cоnclusively appears that Howe ‍​​​​​‌‌​‌‌‌‌​‌‌‌​​‌​‌‌‌‌‌​‌​​​‌​‌‌‌‌‌​‌​​​​‌‌​‌​‍did not act maliciously or oppressively. James v. Sweet, 125 Mich. 132 (84 N. W. 61).

*393' It is contended that the report of the analyst was based upon a half-pint bottle of milk, while the proof shows that plaintiff’s milk submitted to him was contained in a рint bottle; that Howe, being employed in the dairy and food commissioner’s office, should have ascertained thesе facts. We do not think so. In the first place, while the report does state that the sample was submitted in a half-pint bottlе, it states that it was under a seal numbered H. 696. Havens, Smith, and the analyst agree that the sample so numbered and sent was a рint bottle that was procured from Birdsall. Birdsall says it was a pint bottle, and he does not testify as to the number, except аs he produces a receipt bearing a different number, which he said he received from Havens for one bottle. The evidence is clear that an error was made in the report as to the description of the bottle anаlyzed. But, furthermore, the law requires an analysis to be made, and 3 Comp. Laws, § 11424, makes the certificate prima facie evidence of adulteration. See, also, Act No. 268, Pub. Acts 1899, § 6. We are of the opinion that, in the absence of information ‍​​​​​‌‌​‌‌‌‌​‌‌‌​​‌​‌‌‌‌‌​‌​​​‌​‌‌‌‌‌​‌​​​​‌‌​‌​‍or belief to the contrary, such a certificate justifies an officer in making a complaint under these statutes.

The only act done by Havens and Smith was the procuring and sending of the two bottles of milk for analysis. This was lawful under the statute. There is no testimоny indicating any bad faith in this on the part of Havens. Counsel do claim, however, that Smith was actuated by spite, the only reasons alléged for it being plaintiff’s refusal to advertise in a certain newspaper when requested by Smith, and an alleged сontroversy over the alleged unsanitary condition of plaintiff’s premises and milk cans. If it be admitted that Smith caused samрles of milk to be obtained and sent for analysis, he did no more than the law required, if he knew, believed, or suspected it tо be impure, whatever his feelings toward plaintiff may have been. There is no testimony tending to prove that he did more thаn this, and therefore no evidence that he had any part in the prosecution, which appears to have bеen *394based, solely upon the analysis of the milk which came from ‍​​​​​‌‌​‌‌‌‌​‌‌‌​​‌​‌‌‌‌‌​‌​​​‌​‌‌‌‌‌​‌​​​​‌‌​‌​‍the plaintiff’s dairy, under the clear proofs in the case.

Counsel contend that the act under which this plaintiff was prosecuted is unconstitutional, and therefore defendаnts’ prosecution was necessarily without probable cause. If the defendants could have been shown to know that such act was unconstitutional and would be declared so, it is possible that some weight might attach to such claim; but inasmuch as they could not have known it, it cannot be said that the making of a complaint to a proper officer was without probable cause upon such a ground.. Every statute should be considered valid until there is a judicial determination to the contrary, and these defendants had a right to act upon such assumption. The question whether they had probаble cause for making this complaint cannot depend on what may be held.as to the validity of the law. We can thеrefore omit a discussion of the question of constitutionality.

It is also contended that the pleas of the general issue, without any notice of the defenses made, were insufficient, under Circuit Court Rule 7, to support the proof. The genеral issue is a denial of all things that a plaintiff must establish to maintain his action. Want of probable cause is one of these. Sweet v. Negus, 30 Mich. 406; Hamilton v. Smith, 39 Mich. 222; Smith v. Austin, 49 Mich. 286 (13 N. W. 593); Spalding v. Lowe, 56 Mich. 366 (23 N. W. 46); Le Clear v. Perkins, 103 Mich. 131 (61 N. W. 357, 26 L. R. A. 627).

Counsel claim that defendants did not consult the prosecuting attorney, and therefore the court erred in directing a verdict. No attempt was made to excuse an improper prosecution, under the advice of counsel. The question is unimportant.

The judgment is affirmed.

Ostrander, Moore, McAlvay, and Brooke, JJ., concurred.