23 Pa. Super. 415 | Pa. Super. Ct. | 1903
Opinion by
The appellants’ complaint is that the learned judge of the court below refused to give binding instructions to the jury in
Were the circumstances, then, such as to warrant a man of ordinary prudence in believing the plaintiff was guilty of conspiracy ? “ Probable cause does not depend upon the guilt or
Unless, therefore, there was not any evidence to go to the jury on the question of malice there was no error in the refusal of the court to affirm the defendant’s first point.
Malice may be inferred from a want of probable cause. The inference is one of fact, however, and not a conclusion of law. The want of probable cause becomes therefore evidence of malice, the existence of which is to be determined by the jury.
Resort to legal counsel by the defendants was competent to meet the charge of malice, but was evidence in the case for the consideration of the jury.
In order to make the advice of counsel available by way of defense, it must be shown that the party gave to his counsel a full and fair statement of the facts within his knowledge, or which he had reasonable grounds to believe he could prove, that he used reasonable diligence to ascertain the facts, and that he acted in good faith upon the advice received. Evidence of this character is admissible to rebut the charge of malice, but its relevancy is to establish a fact, not to produce a conclusion of law. In a very late case it-was held that “ a resort to professional advice does not constitute an independent and substantive defense to an action for malicious prosecution, but is admissible as tending to establish a defense. Whether
In Schofield v. Ferrers, 47 Pa. 194, the court said that whether a prosecution was instituted maliciously or not was always a question for the jury.
We do not understand the cases cited by the appellants’ counsel to hold that evidence of the resort to counsel is conclusive. The question of fairness, good faith and diligence must be taken into consideration by the jury in connection with the other evidence in the case in arriving at a conclusion as to the existence of malice.
We think the question of malice was properly submitted to the jury, and that the answer of the learned judge to the defendant’s first point was correct. The affirmance by the court below of the defendants’ fourth point was as favorable a statement of the law as the defendants had a right to ask.
The judgment is therefore affirmed.