76 Me. 87 | Me. | 1884
This is an action for malicious prosecution, m which the jury rendered a verdict in favor of the plaintiff for eleven hundred dollars damages, which the defendants move to set aside as against law and evidence, and because they say the damages are excessive. Prior to June, 1881, the plaintiff had been for several years the storekeeper of the Collins’ Granite Company, at Bluehill, having entire control of the company’s store, ordering the -goods, paying off the men, selling goods, and having the general charge of the books kept in the store. At that time a disagreement seems to have arisen between him and the managers of the company as to the amount of his compensa
Upon a careful review of the testimony we do not see how any other verdict could well have been rendered. The damages are not in our judgment excessive. Humphries v. Parker, 52 Maine, 508. The motion must be overruled, and judgment rendered on the verdict, unless defendants are found entitled to a new trial upon their exceptions.
Advice of counsel seems to have been the only thing savoring of a justification which the defendants had to rely upon in instituting the prosecutions.
The burden of their complaint in these exceptions is that the judge left it to the jury to say whether the fact that the attorney and counsellor, upon whose advice one of the defendants claimed to have relied, was the attorney of the company employed at the same time in the prosecution of the civil suit against the plaintiff, "made him an improper person to consult — whether he was carrying on the suit under such circumstances, and with such motives as prejudiced him and rendered him unfit to give fair and impartial advice” in the premises. In view of the uncontradicted testimony that the attorney in question, upon the first arrest of the plaintiff, approached him with the proposition that if he would settle the civil suit the criminal proceedings should be
Had the plaintiff requested an instruction that, if this was the case, the advice of counsel thus engaged would have no tendency to show either probable cause or the absence of malice, could the presiding judge have refused; to give it?
In Hamilton v. Smith, 39 Mich. 222, it is well held that where an attorney and client are in complicity in the institution of a groundless prosecution, the latter cannot justify himself by the advice of the former.
Under all the circumstances, the defendants here could ask nothing more favorable than to have the effect of the evidence submitted to the jury as it was. See Webb v. P. & K. R. R. Co. 57 Maine, 134. It is matter of familiar law that though a legal question has been erroneously or needlessly submitted to the jury, if they have decided it correctly, the verdict will not for that cause be disturbed. Eastman’s Digest, Tit. New Trial, ni, 2. p. 473. Here, however, the matter was necessarily and properly submitted to the jury as a mixed question of law- and fact; and correctly decided, so far as any inference can be drawn from the general verdict. It is not easy to conceive of a case, in which the only element tending to show probable cause is the advice of counsel that the prosecution may be safely commenced, where the testimony upon that point will be so full and indisputable as to justify ruling as matter of law that probable cause is thereby established, so as to entitle the defendant to a verdict. The true doctrine is, that previous consultation with and favorable advice of counsel learned in the law, are facts which have a bearing, both upon the existence of probable cause and the presence or absence of malice in the prosecution complained of (which last is always a question for the jury) ; but the- conditions under
But, in addition to this, it is an essential condition that there should be plenary proof that the client communicated to the counsellor all the knowledge and information which he had, respecting the material facts — and not that alone — but also all such knowledge and information as in the exercise of reasonable care and prudence (with due regard to the rights of the party against whom he proposes to proceed) he might have obtained. Stevens v. Fassett, supra; White v. Carr, supra.
There will seldom be a case in which the existence of this condition will not be disputable in view of all the testimony, and hence, necessarily, to be submitted to the jury with distinct instructions as to the effect which' their finding upon this point is to have upon their verdict. In Taylor v. Godfrey, 36 Maine, 525, upon which the defendants mainly rely to support their objection to the course of the presiding judge, in submitting to the jury the effect of such evidence as there, was to show consultation and advice of counsel on the part of these defendants,
This leads us to remark that a mere loose and general statement of what is done by a defendant in the consultation of counsel, like that made here embodying the testimony that Bicker would have given if he had been present at the trial, cannot, for reasons already adverted to, amount to the plenary proof required of the acts, facts and circumstances which are necessary to make the advice of counsel available as a defence in such an action as this. The details of the statement made by client to counsel, upon which the opinion is predicated, seem to be indispensable in order to enable the jury to determine whether the necessary conditions are fulfilled; and the proof seems to be defective without the testimony of the counsellor, unless its absence is satisfactorily accounted for. A sweeping statement of the client that he submitted all the information he possessed to a respectable lawyer, and in all that he did was guided by that lawyer’s opinion, does not place before the jury such a consultation and opinion as the court say in Stevens v. Fassett, 27 Maine, 283, "will certainly go far in the absence of other facts to show
The exceptions to the admission of testimony are not insisted on in argument. We see none that are tenable. The original papers in the proceedings before the magistrate or duly authenticated copies thereof, were alike admissible. State v. Bartlett, 47 Maine, 396. The search for the deceased magistrate’s record seems to have been conducted in the right quarter, and it was exhaustive. Parol evidence of the disposition he made of the case, was all that could be given, and was competent and satisfactory.
Motion and exceptions overruled.