39 Mich. 222 | Mich. | 1878
This writ of error is brought to reverse a judgment for $3500 rendered in Smith’s favor on a charge of malicious prosecution. Some preliminary explanation is requisite. In the summer of 1876 the wife of Hamilton instituted her suit by bill against him for a divorce, and he employed the defendant Dunning, a solicitor, to make defense for him. In due season Dunning put in Hamilton’s answer and it contained a charge of adultery by Mrs. Hamilton with Smith. But shortly before the answer a sworn statement of one Whittenberg
This action was brought for such prosecution and imprisonment. The declaration contained two counts.
The first charged in substance and apart from technical terms and additions that the proceedings were contrived and brought about by a conspiracy between Hamilton and Dunning and with the final design of making use of such proceedings, and of the control they would give and the facilities they would afford to extort from Smith a confession on oath of the adultery charged in Hamilton’s answer and in such shape as to be susceptible of use as evidence in support of the charge.
The second count omitted the allegation of conspiracy and some matters of explanation and simply complained of Hamilton and Dunning as joint wrong-doers in the transaction.
The plaintiffs in error were not entitled to have the jury charged in the terms of any of their requests. But it appears obvious that the instructions given were not suitable or sufficient.
To maintain a suit for malicious prosecution three distinct propositions must be established:
First. The fact of the alleged prosecution and that it has come to a legal termination in the plaintiff’s favor.
Second. That the defendant had not probable cause.
Third. That he ■ acted from malicious motives.
No question has arisen respecting the existence of the prosecution or of its having ended, and in the acquittal of
As to the second, when that is controverted as in this case, it is incumbent on the plaintiff to make out that the defendant did not have probable cause, and in order that the controversy upon the question may be intelligently disposed of, an understanding of what is probable cause is indispensible. Unless the jury are informed and know, they cannot tell whether there was such cause or not. No standard is afforded with which to compare the state of facts ascertained to have existed.
As lawful grounds may exist to justify a party in setting the' criminal law in motion, although it turn out that no offense has been committed, or if committed, not by the accused, so it follows that what is probable cause is not contingent' upon the fact of the guilt of the accused. This is evident. The law itself ordains that prosecution shall be the method for solving the question whether one has committed crime or not, and as prosecution is therefore a necessary antecedent, the law would violate common sense and destroy itself if it were to say that the act of prosecuting must yet wait for knowledge of the guilt of the suspected party.
In case the information possessed is believed and is such and from such-sources that the generality of business men of ordinary “care, prudence and discretion” would prosecute upon it under the same conditions, there . is probable cause. Gallaway v. Burr, 32 Mich., 332; Fagnan v. Knox, 66 N. Y., 525; Heyne v. Blair, 62 N. Y., 19; Bacon v. Towne, 4 Cush., 217; Wheeler v. Nesbitt, 24 How., 544. And if it appear that the defendant had probable cause the action must fail, no matter how wicked or flagitious may have been the real motive. The circumstances having been such as would have justified a man of rectitude in moving in obedience to his duty as a citizen, the law will not inquire whether he who did move was governed by base motives or not. The act in itself being proper, the bad
But a man has no right to set the criminal law in motion against another upon mere conjecture that he has committed crime. And when neither the conduct of the accused apparent to the accuser, nor the information of the latter, are sufficient to warrant the just suspicion before pointed out, there can be no justification (Churchill v. Siggers, 3 El. & Bl., 937) and’a person cannot shield himself from liability by claiming that appearances afforded probable cause, if the fact be that the circumstances and information were falsely and unreasonably construed or applied. Fitzjohn v. Mackinder, 9 C. B. (N. S.), 505. Much less can he do so if he was aware that the accused was in fact guiltless; or was aware of matters which would have explained the unfavorable appearances and exculpated the accused and did not divulge them; or was privy to the fact that in order to give a colorable basis for prosecution trickery and fabrications were resorted to and appearances of suspicion raised by conspiracy or other corrupt means; or if the chief appearances of suspicion and the prosecution were due to a corrupt’ plot by the prosecutor, or by him and another, and were brought about pursuant to such plot to the end of being used as means to coerce the accused to swear that improper relations existed between him and the prosecutor’s wife.
Enough has probably been said for the purpose of this case upon what is “probable cause.” So much depends upon the identical circumstances -of the individual case that there is difficulty in explaining by instances.
A point of great importance remains however to be noticed. It is the province of the jury to ascertain what state of facts exists, and it is the province of the judge to decide whether that state of facts constitutes probable cause, and the law intends that these functions shall be kept distinct. But as the law appropriate to
Here the facts were in dispute, but the judge failed to give proper attention to this distinction, and also neglected to define or explain probable cause and the jury returned a general. verdict. In such a state of things it is impossible to find out what combination of facts the jury ascertained, or whether they had any intelligent idea at all of this feature of the case.’ Bulkeley v. Keteltas, 4 Sandf., 450; Stone v. Crocker, 24 Pick., 81; Hinton v. Heather, 14 M. & W., 131; Panton v. Williams, 2 Q. B., 169; Heslop v. Chapman, 22 E. L. and E., 296; Fagnan v. Knox, supra, and other cases. Stone v. Crocker is very instructive.
The proposition that the prosecution must have been malicious requires but few words.
If in any case the jury under proper instructions had reached the conclusion that probable cause existed, or are led to think, in view of all the circumstances, that the want of it has not been made out, the case is at an end.
• However base the proceeding may have been the action must fail. A necessary ingredient of the cause of action charged is wanting. But supposing the want of probable cause to be made out, it is then requisite to ascertain whether there was malice. Eor if it does not appear that the prosecution was malicious as well as without probable cause, again the action must fail, and it is possible, though very unusual, for a prosecution to be commenced or pursued without probable cause and
Malice' may be proved by direct evidence or it may be inferred from circumstances, and generally it may be inferred from the want of probable cause, though the latter can never be presumed or inferred from the most express malice.
The facts disclosed by the record are sufficient to excuse any special discussion of this part of the case; because if want of probable cause is made out it is hardly possible that any difficulty can occur in regard to the question of malice. See Wiggin v. Coffin, 3 Story C. C., 1, and note to Munns v. Dupont, 1 Am. Lead. Cas., 200; Stevens v. Midland Counties Rw. Co., 10 Exch., 356; Kerr v. Workman, Addis. (Pa.), 270; Chapman v. Dodd, 10 Minn., 350; Michell v. Williams, 11 M. & W., 217; Turner v. Walker, 3 Gill. & J., 377.
Complaint is made of rulings bearing on the damages. Upon this subject, as on some others, the charge was general and vague, and not sufficient to properly enlighten the jury in regard to their duty. The principles governing
We may observe in general terms that the elements of damage were the expense of, the plaintiff, if any, in and about the prosecution complained of to protect himself ; his loss of time; his deprivation of liberty and the loss of the society of his family; the injury to his fame; personal mortification and the smart and injury of the malicious arts and acts and oppression of the parties. It was due to the jury to explain to them their province in regard to damages and the grounds upon which they might make allowance, and to call their attention to the principles proper to guide their discretion.
Some special importance seems to have been attached to the circumstance that the first count contained a charge of conspiracy.
In very ancient times all actions for malicious prosecution were laid, where two or more defendants were involved, with a charge of conspiracy, and this practice is supposed to have been adopted from analogy to the statutory form of the old writ of conspiracy. But the early practice, has been long obsolete. The action is
Wherever two or more conspire together to commit an actionable wrong, everything said, done or written by any one of them in the execution or furtherance of their common purpose is deemed to be so said, done or written by every one and is a relevant fact as against each; but relations of what is past are not relevant as such as against any except those who make them or are present when they are made. Before admitting the sayings or doings of one as the sayings or doings of all, the judge must be satisfied that apart from them there are pruna facie grounds for believing in the existence of the conspiracy. 2 Wharton’s Evid., §§ 1205, 1206; Beebe v. Knapp, 28 Mich., 53; Waterbury v. Sturtevant, 18 Wend., 353; Cuyler v. McCartney, 40 N. Y., 221; Lincoln v. Claflin, 7 Wall., 132; Nicholls v. Dowding and Kemp. 1 Stark., 81; Stephen’s Digest of Evidence, Art. 4.
The record contains nearly sixty charges of error, and a great many are based on exceptions against rulings admitting or rejecting evidence. Of these a large
There appears to have • been considerable confusion concerning the theory of the action, and consequently in regard to precisely wh'at matters might be proved, and if provable, then in what way. This supposition springs from a careful study of the whole record, but a single incident is expressive. The bill of exceptions shows that testimony understood as tending to prove that there was probable cause, was from time to time offered by the defense and excluded on the plaintiff’s objection, and that at a later stage the plaintiff’s counsel announced that all such objections were withdrawn. The case fails to show that this action was either in such time or so explicit as to fully remedy the mischief caused by the exclusions.
No attempt has been made to pass on each allegation of error. In view of the mode in which the action was tried and the way in which it was submitted to the jury it has appeared evident that a new trial must take place, and that in conducting it the case would have to be looked at in a different aspect and under changed lights. It has seemed expedient therefore to consider the case somewhat at large rather than seek to notice the proceedings item by item. Some of the inaccuracies apparent would seem to have arisen from inadvertence and are not likely to be repeated, and there is reason to suppose that the same questions of evidence will not come up again, or if they should, not in the shape they now bear.
Before dismissing the case one other feature may be noticed. The fact that Hamilton counseled with Dunning and received his legal assistance seems to be relied on as' affording a. justification for Hamilton. Smith’s-
On the other hand, if the theory and state of facts asserted by Smith are not true, — if the case he insists upon fails in evidence, then the action must fall to the ground without regard to any claim by Hamilton to be shielded from liability by advice received from Dunning. The point is immaterial. Stansbury v. Fogle, 37 Md., 369; Weston v. Beeman, 27 L. J. Exch., 57; Glascock v. Bridges, 15 La. Ann., 672.
The judgment must be reversed with costs, and a new trial granted.