60 So. 490 | Ala. Ct. App. | 1912
This suit was brought by appellee against appellant for damages for a malicious prosecution. During the month of June, 1910, C. M. Shaw, a flagman on one of appellant’s trains, became involved in ■a personal difficulty with appellee. Shaw, as a result of the combat, received a broken nose and probably other bruises. He lived in Nashville, and was on that or the succeeding day carried to his home, where he remained confined to his room for several days on account of his injuries. On July 13th he obtained a pass from appellant and went to Decatur and made two affidavits against appellee. In one of the affidavits he charged the appellee with having assaulted and beat him with knucks, and in the other affidavit appellee Avas charged with carrying knucks concealed about his person. The case against appellee, in Avhich he Avas charged with assault and battery, Avas tried by a jury; the local counsel of appellant at Decatur appeared Avith the solicitor and assisted him in the trial, and appellee was acquitted. Thereupon the solicitor dismissed the case against appellee in Avhich he was charged Avith carrying knucks concealed about his person. The above prosecutions having terminated, this suit was brought upon the theory that the criminal prosecutions were in fact either maliciously and without probable cause instituted by the appellant, or that appellant aided and abetted ShaAV in the institution of the prosecutions, which it is claimed were instituted by Shaw maliciously and without probable cause, or that the appellant, after Shaw had instituted the prosecutions maliciously and without probable cause, ratified the prosecutions and participated therein by employing counsel to aid the solicitor in prosecuting the same.
When tbe case against appellee in wbicb be Avas. charged with assaulting and beating ShaAv Avas tried, ShaAv testified to facts wbicb, if true, conclusively established not only that appellee was guilty of assaulting and beating bim Avith knucks, but also that tbe appelleecarried knucks concealed about bis person. On that trial appellee testified that be struck Sbaw in said difficulty, but that be did not strike bim with knucks, and that be bad no knucks about bis person on tbe occasion named. In that be was corroborated by several witnesses and Avas, as we have above stated, acquitted.
Tbe appellee, in bis efforts to make out bis case-against appellant, showed affirmatively that appellant, when tbe prosecutions against appellee were begun in tbe office of appellant’s local counsel in Decatur, was. possessed of tbe information wbicb bad been given it by ShaAv, wbicb Sbaw then and afterwards swore was true.
There is absolutely nothing to indicate that, Avhen the prosecutions were instituted, the appellant or its attorneys had any reason to doubt the truth of Shaw’s statements, and it is a familiar proposition that information received from persons apparently respectable, and believed to be credible, that a crime has been committed and that it was committed by a certain named person, is sufficient evidence of reasonable and probable cause for a prosecution against such named person for such ■crime. — Jordan v. A. G. S. R. R. Co., 81 Ala. 220, 8 South. 191; 19 Am. & Eng. Ency. of Law, 661; Chatfield v. Comeford, 4 F. & F. 1008.
The question as to whether or not there is probable •cause may or may not be a question for the jury, according to the circumstances of the particular case. When the facts relied upon to constitute probable cause are
When appellee placed one of the local counsel of appellant upon the stand as his witness, he vouched for the credibility of the testimony of that witness, and not only did the testimony of that witness show that the prosecutions against appellee were instituted upon probable cause, but his testimony was, on that subject, corroborated by all of the other evidence in the case. In other words, in attempting to make out a case against appellant, appellee affirmatively shoAved, by testimony offered by him, a defense for appellant to this action.— Ewing v. Sanford, 19 Ala. 605; McLeod v. McLeod, 75 Ala. 487; Walker v. S. E. Ry. Co., 39 L. J. C. P. 346. There is nothing, as Ave have already said, to indicate that, at the time of the institution of the prosecutions against appellee, appellant had any reason to believe that Shaw Avas untruthful or to disbelieve his statements; and, this being true, the appellant and its local counsel at Decatur had, as we have already said, a right to act upon his statements and to accept them as true. —Jordan v. A. G. S. R. R. Co., supra; Lester v. Perryman, 39 L. J. Ex. 177. There was no evidence tending to show that appellant, through its counsel or otherwise, had any connection whatever with the prosecution instituted against appellee for carrying knucks concealed about his person after it Avas begun, and it fol
We do not think that the question as to whether the appellant acted with malice, either in instituting the prosecutions upon the advice of counsel or in instituting them upon the information' which appellee’s evidence showed it had in its possession through the statements of Shaw, is before us. The appellee, by his evidence, conclusively showed that appellant was in possession of information which it had received from Shaw, and which constituted, as matter of law, probable cause; and, as the appellee affirmatively proved the existence of probable cause for the institution of the prosecutions, the question as to the intent with which the prosecutions were instituted is irrelevant. On this subject, the following extract from Walker v. S. E. Ry. Co., supra, in which the italics are ours, will illustrate the integrity of our position: “The third head of complaint was for a malicious prosecution. The Lord Chief Baron held that there was no proof of probable cause, but reserved leave to the court on this point to enter the verdict for the defendants. The depositions of Antonio and the other railway servants were put in at the trial, and they contain, as it seems to us, abundant evidence of violent assaults upon the servants of the company and upon Antonio in the execution of his duty as a police constable. The advisors of the company, if made acquainted with these facts by those servants, might, Ave think, as prudent and reasonable men, have given credit to them and acted upon the facts as communicated to them. We do not understand this to be disputed,
In the present case, the appellee, as stated above, proved, as a part of his case, that appellant’s attorneys were in possession of the evidence of Shaw at the time the prosecutions were instituted, and that, under their advice, the prosecutions were immediately begun upon the reception by them of that, information. In other words, every reasonable tendency of appellee’s evidence was to the effect that the only information which was in possession of appellant at the time of the institution of the criminal prosecutions against appellee was the in
The ancient common law was much stricter in inflicting penalties upon intermeddlers in lawsuits than is the law of today.- Says Hawkins: “It seemeth clear that whosoever assists another with money to carry on his cause, as by retaining one to be of counsel for him, or otherwise bearing him out in the whole or part of the expense of the suit, may properly be said to be guilty of an act of maintenance, as it seems to be taken for granted in the books cited in the margin. ■ Also it is said
We have quoted the above for the purpose of emphasizing the strictness of the ancient common law with reference to the matter under discussion, and yet, when the above was, in all its strictness, the law of England, it was also the law that “the master may go along with his servant * * in order to retain counsel, and that he may pray one to be of counsel for him, and also that he may go with him to the trial and stand with him and aid him while the cause is tried, but ought not to speak in the court in favor of the cause.” — 1 Hawkins, Pleas, p. 459, § 31. “Statutes prohibiting particular species of maintenance add penalties; but it is laid down as a fundamental authority that maintenance is not malum prohibitum, but malum in se; that parties shall not, by their countenance, aid the prosecution of suits of any kind, which every person must bring upon his own bottom and at his own expense. * * * There is a justifiable maintenance, arising from the priv
We know of no law which denies to the master- the right to furnish counsel, advice, and assistance to his servant when that servant becomes involved in litigation growing out of some act of his while performing his master’s service. Of course, when the master assumes the responsibility of so doing, he must act in good faith, and he must not knowingly aid or abet his servant in an attempt on the part of the servant to perpetrate a wrong through the courts. In the instant case the servant left home to perform a service for the master. He came back with a disfigured face and informed the master that his injuries were received while performing the master’s service, and that they were due to an unlawful assault and battery committed upon him by appellee with knucks, and that the knucks were concealed. The master furnishes him with transportation to Decatur, the county seat of the county in which the battery was committed, and advises him to see the lawyers of the master who reside there, and act upon their advice. This the servant does, and states the same facts to the lawyers, which he afterwards testifies as a witness in court, and which, if true, justifies the prosecutions. The lawyer, upon hearing the facts as stated by the servant, advises a prosecution, and the servant makes the necessary affidavits. Before the trial is had, but after the prosecutions had been commenced, the master, through its general counsel, writes a letter to
The relation of master and servant existed between appellant and Shaw when the battery occurred, when the prosecutions were instituted, and when the trial was had — in fact, from the inception to the conclusion of this matter — and we have already said as there is nothing in this record indicating that the master did not believe the servant, and as there is nothing indicating that the master should not have accepted the servant’s statement as true, there is nothing in the record from which a lack of good faith on the part of the master in furnishing assistance to the servant and the state can be reasonably and legally drawn. — Walker v. S. E. Ry. Co., supra. If the master believed the servant — and there is nothing to indicate the contrary — then, as the master had the legal right to do all that the evidence shows Avas actually done, the master acted in legal good faith, for, as we have already said, the law will not inquire into the motive which prompts a legal act. Indeed, in the case of Grant v. Thompson, 18 Cox. C. C.
As was said by Mr. Justice Head in the case of O’Neal v. McKinna, 116 Ala. 606, 22 South. 995: “It is to the interest of the public that offenders be brought to justice; and in all cases where there is probable cause for believing a person has committed a criminal offense, the prosecution of which is demanded by the public welfare, it is a public duty on the part of any citizen sufficiently informed of the fact to take the necessary steps to bring the case to judicial investigation; and, this being so, it would be a policy pernicious to society were the law to permit the legal propriety of a prosecution supported by such probable cause to be determined by a consideration of the private, motives, whatever they might be, of the party instituting it.” While it certainly is not within the usual objects or powers of appellant to furnish counsel to aid the state in the prosecution of those charged with a violation of the law, it had the legal right to do so, and, as the appellee’s evidence affirmatively shows that appellant had probable cause for believing the appellee guilty of the offense of assault and battery upon Shaw with knucks, we are of the opinion that upon this theory of the appellee’s case the appellee was certainly not entitled to recover.
In the above case, as in this case, the servants of the railroad company claimed that they had been assaulted by the parties against whom the prosecutions were being had; the attorneys for the railroad company appeared before the magistrates and conducted the prosecutions, acting in so doing upon information received from the servants; but, as the attorneys for the railroad company in that case did not become possessed of all the circumstances or facts until the trial was had, the court held, and we think properly, that there Avas no evidence of a ratification. In the instant case, the information, according to appellee’s evidence, upon which the attorneys of the appellant acted when they appeared as prosecutors in the cases against appellee, was the information which had been given them by Shaw, and which we have already held constituted probable cause
The above doctrine was recognized, we think, in Shannon v. Simms, 146 Ala. 673, 40 South. 574. In that case, charge 5, which the Supreme Court held bad because it “fixed the liability of the defendant for the action of Chambers by a mere acquiescence, which could have been by silence, yet which would not be a ratification of the act of Chambers,” was as follows: “If you are reasonably satisfied from the evidence that Chambers swore out the warrant as the representative or agent of Shannon, and the facts were made known to Shannon and he acquiesced in Chambers’ act, I charge you that he thereby ratified the act of Chambers.” There is no evidence in this case tending to show that appellant’s counsel at the time the letter was written by the division counsel of appellant on July 29th to the local counsel at Decatur, from which we have above quoted, or at the time the local counsel at Decatur joined the solicitor in the prosecution of appellee, was possessed of any information except that which Shaw had already given them, and to the truth of which he testified as a witness on the stand.
It is evident, from what we have above said, that, under the evidence in this case, in our opinion the appellant was entitled to the general charge, which it requested the trial, court to give the jury, that, if they believed the evidence, they should find a verdict for the appellant.
Beversed and remanded.
Note. — The foregoing opinion was prepared by Judge de Graffenried, while he was a judge of this court, and is adopted by the court.