“Malice has been thus well defined by this court: ‘Whatever is done willfully and purposely, whether the motive be to injure the accused, to gain some advantage to the prosecutor, or through mere wantonness or carelessness, if at the same time wrong and unlawful within the knowledge of the actor, is in legal contemplation maliciously done.’ Lunsford v. Dietrich, supra [93 Ala. 565 ,9 South. 308 ,30 Am. St. Rep. 79 ]; Jordan v. A. G. S. R. R. Co., 81 Ala. *383 220,8 South. 191 . Personal ill will, or desire for revenge, is not essential to the existence of malice as the law views it. Lunsford v. Dietrich, supra.
“Probable cause was also defined in Lunsford v. Dietrich, supra, as follows: ‘A reasonable ground for suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the person accused is guilty of the offepse charged.’ Mere suspicion .and belief, even though honestly, bona fide entertained, of the guilt does not, as readily appears, alone, rise to the dignity of affording a basis for probable cause. It is essential that, at the time the oath of affirmation is taken or made, the actor then knew of facts or circumstances such as would have justified a reasonable and cautious man in believing that the accused was guilty. Lunsford v. Dietrich, supra.”
A statute of like character was attacked upon constitutional as well as other grounds in the case of Jasnowski v. Connolly,
It is earnestly insisted by counsel for appellant that the court erred in refusing the affirmative charge for the defendants, upon the theory that the evidence shows without dispute there was probable cause for the prosecution; and that in such case there is presented a question of law for the court. Gulsby v. L. & N. R. R. Co., supra.
This insistence is largely based on some of the testimony of the plaintiff himself, who stated that all the articles offered were not of the full value as advertised, but that they were of varying values, “up to” the price indicated in the advertisement. The evidence for the plaintiff shows that he handed the telegram received from his wife, who was then purchasing goods for his company in New York City, to his advertising agent, with instructions to feature the advertisement in accordance with the telegram. The telegram was set out verbatim in th'e advertisement, and which, it may be inferred, formed the basis of the advertisement. It states “the telegram tells you the story.” The telegram was to the effect that the values were to a certain price. There was ample evidence tending to show that among the different articles featured quite a number were of the full value as advertised, while others were not of such full value, but were well worth the price at which they were offered for sale.
The entire advertisement is to be considered as a whole, and we are of the opinion that, under the circumstances here disclosed, it was for the jury to determine whether or not the plaintiff knowingly published what was untrue, deceptive, or misleading.
[5] However, there is still another answer against the insistence for the affirmative charge. In cases of this character, the question to determine is whether the prosecutor acting in good faith and on the reasonable appearance of things entertained the reasonable belief of the guilt of the accused, and not whether the accused was in fact guilty.
The theory of the plaintiff is that, while the defendant Block did not swear out -the warrant against him, yet he in fact caused his prosecution, instituted the original inquiry before the Ad Club, and was in fact the instigator of the entire proceeding. So the question remains, Were the facts and circumstances which were then known to the defendant sufficiently strong in themselves to warrant a cautious man in the belief that the plaintiff was guilty of the offense charged? The secretary of the Ad Club states that in the conference, which was held in the private office of the defendant Block, the two advertisements were exhibited and examined.
So far as all charges, with the exception *384 of the coat and waist purchased, as agreed in the conference, are concerned, there can be no serious controversy that the question of probable cause was for the jury’s determination. As to the coat purchased by the secretary’s wife, there was ample evidence for the jury’s determination that it was of the full value advertised. In a statement by the secretary of the Ad Club is found this admission: “When the coat was bought .it was found to be of the full value placed upon it in the advertisement.’'’ As to the waist purchased there is also evidence tending to show that it was of the value advertised, as is disclosed by the evidence set out in the statement of the case. Although the preponderance of Ore evidence may tend to show that it was not of the advertised value, yet it was of the full value at which it was offered for sale. The proof shows that various opinions were entertained as to the value of merchandise of .this character; and therefore the question of probable cause upon this phase of the case was one for the determination of the jury.
Had the defendant Block been the actual prosecutor, there can be no question that the act of abandoning the. same should be weighed by the jury in connection with all the other circumstances in determining whether or not there was probable cause for believing the accused guilty of the offense charged. McLeod v. McLeod, supra.
The evidence for the plaintiff tended to show that, while Block was not the prosecutor upon the face of the proceeding, yet he was in fact the originator of tire entire matter, and that he was in truth and in fact the plaintiff’s prosecutor, shielded and protected by the Ad Club; that he furnished all the means by which any evidence was secured upon which prosecution could be based. And we are of the opinion that, under the evidence as here disclosed the abandonment of the prosecution by the Ad Club was properly to be considered by the jury upon the question of probable cause. We are of the opinion, howSver, that this evidence was admissible upon the question of actual malice, as having so'me tendency to show prior animus on the part of Block. Plaintiff was a new competitor in the defendant’s line of business, and we think the evidence for the plaintiff tended to show some activity on the part of defendant to remove plaintiff from that particular field of business, and that this prosecution was but other evidence of some feeling on the part of a restless,competitor.
While there was no direct evidence to this effect, yet we entertain the view there was sufficient proof, however slight, from which the jury could infer that the continuance of the prosecution by the attorney after having been requested to drop the case by the Ad Club was at the defendant Block’s instigation, suggestion, or request. Under these circumstances, therefore, if the jury reached such conclusion, the persistence of the defendant in the prosecution, after the abandonment thereof by the Ad Club, was proper to be weighed by them upon the question of malice.
It was said in B. R., L. & P. Co. v. Humphries,
“While it is true that the defendant is not liable for any more than the reasonable value of the services, * * * yet neither is it liable for any more than has been actually paid or is due. So it is necessary to prove both, and both cannot be proved at once. The natural order is to prove what the charge is, and then prove whether or not it is reasonable.”
The objection, it is noted, to the question was very general, and was not based upon the specific ground that such sum was not shown to be reasonable. It is clear therefore that the question was not objectionable upon these specific grounds, and that the court cannot be put in error for overruling the same.
In addition to this, the plaintiff was the sole manager, and largely interested in the business, of S. A. Williams & Co., which had been in operation only two months, and which, from the evidence, seems to have been meeting with some degree of success. There is also evidence tending to show that publicity was given to the prosecution of plaintiff in the newspapers of the city, and that it became a matter of considerable discussion. A business of this character is largely dependent upon the good will and trust of the public. As relating to his line of business, the charge was a rather serious one, calculated to inflict considerable injury and place him at much disadvantage. Under such circumstances the damage actually sustained is difficult of precise measurement.
The rule in regard to the action of the court on the question of disturbing a judgment as being excessive in amount, is well understood, and need not be hero repeated. Cent. of Ga. Ry. Co. v. White,
After a careful review of the record in this caso, we have reached the conclusion there was no error in this ruling of the court, and that the judgment is not such as to call for any action upon our part.
The oral charge of the court, as well as charges given for the respective parties, are set out in the record, and the court very properly submitted the question of malice, and the existence vel non of probable cause for the consideration of the jury.
The mere fact, therefore, that the court gave to the jury for the defendants at their request one charge .which was doubtless more favorable than was justified clearly does not present reversible error. Indeed, the holding of this court in the recent case of Tally v. Whitlock,
We have here considered the assignments of error argued in brief by counsel for appellant, and have reached the conclusion that no reversible error is shown.
It results therefore that the judgment appealed from will be affirmed.
Affirmed.
Notes