148 Ky. 671 | Ky. Ct. App. | 1912
Opinion op the Court by
Affirming.
Plaintiff, William White, brought this action against defendant, Thomas Weddington, to recover damages tor malicious prosecution. The jury returned a verdict in his favor for $300. Prom the judgment predicated thereon, the defendant appeals.
Two or three other witnesses testified that the hogs seen with plaintiff’s hogs looked like the hogs which defendant had-lost.
As the instructions are not contained in the bill of exceptions, and are not made part of the record by order of court, we cannot consider them. Forest v. Crenshaw, 81 Ky., 51; Tinsley v. White, 21 Ky. L. R., 1151; C., O. & S. W. Ry. Co.’s Receiver v. Smith, 101 Ky., 714.
It is the rule, however, that advice of counsel is a defense to an action for malicious prosecution only when all the facts bearing upon the guilt or innocence of the accused which the prosecutor knew, or could have ascertained by reasonable inquiry, are fully and fairly disclosed to counsel. Nance v. Cash, 143 Ky., 358; Burk v. Rhodes, 13 Ky. L. R., 431; Auderson v. Columbia Finance & Trust Co., 20 Ky. L. R., 1790; Ahrens & Ott Mfg. Co. v. Hoeher, 106 Ky., 692; Smith v. Field, 129 S. W., 325; 139 Ky., 60; Gatz v. Harris, 134 Ky., 550.
In this case, plaintiff and defendant were neighbors. Defendant admits that he never talked to plaintiff at all with reference to the hogs, but spoke only to plaintiff’s son. He never even took the trouble to inquire of Gilliam whether the latter sold the hogs to plaintiff. He claims to have consulted Gilliam’s wife and to have accepted her statement, though he admits that she denied having made the statement to him. Under these circumstances, we cannot say as a matter of law that defendant fully and fairly disclosed to the Commonwealth’s Attorney all the facts which he knew, or could have ascertained by reasonable inquiry. Had he inquired of Gilliam, Gilliam would have told him that he sold the hogs to plaintiff. This information he could have acquired with very little effort. Had this information been conveyed to the Commonwealth’s Attorney, it is very doubtful if he would have recommended to defendant that the prosecution be instituted. At any rate, the question was for the jury, and the court did not err in refusing to give the peremptory instruction asked for by defendant.
Judgment affirmed.