In this action for malicious prosecution, the trial court directed a verdict for the defendant at the close of the evidence. Plaintiff appeals on the ground that the question of probable cause for prosecuting the plaintiff should have been submitted to the jury.
Plaintiff was a tenant оn a farm owned by defendant and they shared equally in the profits realized from the milk production. Eighteen cows were being milked by the plaintiff. A substantial number оf the cows were bred to come fresh in the spring, but in April and May the defendant noticed that the milk production was not increasing as it should have. He аlso learned plaintiff’s daughter was making daily trips, shortly after milking time in the morning, to the home of her brother-in-law who operated another farm and was аlso shipping milk. The production on the farm of the brother-in-law showed a very substantial increase about this time. Defendant went to the county attornеy and stated the grounds for his suspicion that the plaintiff was diverting milk to his son-in-law. The county attorney advised that more proof should be obtained before taking out a warrant.
Defendant testified that thereafter he and his brother went to the farm early one morning and from a place of concеalment saw the defendant load two ten-gallon cans of milk into the daughter’s car, which she daily drove to the farm of her brother-in-law. Defendant returned to the county attorney, advised him of these additional facts, and the county attorney recommended the issuance of the warrant.
The grand jury fаiled to indict the plaintiff, and this suit followed.
The ground upon which the trial court directed a verdict was that defendant acted upon advice of сounsel, and it is well recognized that such advice is a complete defense to a claim of malicious prosecution. Stanhope v. Cincinnati, N. O. & T. P. R. Co.,
Plaintiff contends that a fair disclosure was not made by defendant to the county attorney. He denied that defendant оbserved him sending off two cans of milk in his daughter’s car, and therefore insists defendant fabricated this evidence presented to the county attorney. We have held that where reliance is placed upon advice of counsel, if there is a dispute on conflicting evidence about the existence of a material fact disclosed, then the question of full and fair disclosure is one for the jury. Smith v. Kidd, Ky.,
Defendant contends, and we believe rightly so, that advice of counsel is simply one means of showing probable cause, and that there were sufficient other undisputed facts which justified the direct-ed verdict. Since public policy favors the ..exрosure of crime, and malicious prosecution actions are- not favored in the law,
Where sufficient undisputed facts show probable cause, the question is one of law for the court. See Stearns Coal Co. v. Johnson,
The following facts are not disputеd: (1) Milk production should have appreciably increased in the spring when the cows freshened. (2) Defendant’s cows were not producing anything like thе quantity of milk they could normally be expected to produce in April and May. (3) The wife of plaintiff’s son-in-law had told defendant’s wife that the son-in-law was milking only eight cows. (4) The son-in-law was shipping 60 or 70 gallons of milk a day, which was more than twice as much milk as plaintiff was shipping, from what defendant had reason tо believe was half as many cows. (5) Defendant observed the apparently excessive shipments by the son-in-law. (6) Plaintiff’s daughter made daily trips shortly after milking time to the home of the son-in-law. (7) Defendant had complained to the plaintiff about the shortage of milk, and the situation continued.
It is true the plaintiff had a reasonable explanation for the unusual circumstances. He, of course, denies stealing milk, but the guilt or innocence of the aсcused is not material on the question of probable cause. Hudson v. Nolen,
Whether оr not the plaintiff’s story was true, we need not determine. It may be assumed that the circumstances were as the plaintiff presented them. Be that as it mаy, the question here is whether or not the defendant could reasonably reject plaintiff’s possible explanations and instead draw his own conclusion from the undisputed facts.
An examination of these undisputed facts convinces us there was strong circumstantial evidence that plaintiff was converting milk produced on the farm. The fact that defendant twice consulted the county attorney tends to show good faith and diligence on his part. If a citizen was required to have positive proof of another’s guilt before initiating prosecution, criminal law enforcement would be greatly impaired. Our question is whether or not upon the facts in this case defendant had such reasonable grounds to believe a crime had been committеd that he was justified in invoking the processes of law to have that question judicially determined. We are of the opinion that defendant established рrobable cause justifying his act as a matter of law.
Plaintiff attempted to show the defendant was motivated by malice rather than probable сause in swearing out the warrant. He introduced evidence that defendant had stated to others he was anxious to get plaintiff off his farm. We do not think malice was shown because the reason given by defendant why he wanted plaintiff off his farm was because he thought the plaintiff was stealing milk. However, еven if there was evidence of malice, plaintiff was still required to show in addition that there was want of probable cause. J. B. Colt Co. v. Grubbs,
Plaintiff also аrgues that other persons to whom defendant had directed
While the trial court, in giving its reasons for directing the verdict, may have overemphasized the advice of counsel, we think his ruling was otherwise warranted upon sufficient grounds.
The judgment is affirmed.