8 Pa. Super. 468 | Pa. Super. Ct. | 1898
Opinion by
If there is anything well settled in the law, it is, that malice and want of probable cause must be proved in order to entitle
In this connection we might as well dispose of the third assignment of error.
It is true the question whether or not there was probable cause does not depend on the actual state of the case in point of fact. The test is the prosecutor’s belief of its existence at the time. But this must be based upon reasonable grounds, and we agree with the court below that the mere fact that other articles, missed by the defendant at different times, were found in the possession of various enployees of the plaintiff’s company would have no legitimate tendency to induce a reasonable belief in the mind of any prudent man — knowing what the defendant did of the plaintiff’s rights and possession under his contract — that the latter was guilty of stealing this derrick, when he caused it to be removed in broad daylight and set up on an adjacent property. The court committed no error in rejecting this offer.
Was the prosecution malicious? Something more than mere legal or theoretical malice is requisite to sustain an action of this kind, for it must be proved as a fact, and, while it may be inferred from a want of probable cause, its existence, nevertheless, is for the jury: Schofield v. Ferrers, 47 Pa. 194; Bernar v. Dunlap, supra; McCarthy v. DeArmit, 99 Pa. 63; Emerson v. Cochran, 111 Pa. 619; Cooper v. Hart, 147 Pa. 594. “ While the former” — want of probable cause — “is evidence of malice proper to be submitted to the jury, it does not establish legal malice to be declared by the court:” McClafferty v. Philp, 151
Moreover, the defendant in the action gave evidence of precisely such extenuating circumstances as are referred to hi that ease. If hi good faith the prosecutor seeks, obtains and honestly follows tiie advice of competent counsel on a full and fair statement of all the facts within his knowledge, or which he has reason to believe he is able to prove, and omits none which, with reasonable diligence, he could ascertain or discover, the advice so received will constitute a defense to the action: Beihoffer v. Loeffert, 159 Pa. 374; Barhight v. Tammany, supra; McClafferty v. Philp, supra. Such advice is sometimes called probable cause, but in strictness it rebuts the inference of malice arising from want of probable cause: McCarthy v. DeArmit, supra.
It is claimed that the defendant could not set up the advice of counsel as a defense, because (1) he did not inform him that Fry had told him that if his men had taken the rig he would pay for it; and (2) did not show him the written contract under which the plaintiff’s company held possession of the property from which the rig was removed. This contract was in the form of a receipt for $2,800, in payment for two gas wells, and contained this clause: “The condition of this sale is, that when the gas is exhausted the wells are to be returned to me free from rentals due as they are delivered.” The counsel who advised the prosecution and drew the information tes
The judgment is reversed, and a venire facias de novo awarded.