Whitney v. New York Casualty Insurance

50 N.Y.S. 227 | N.Y. App. Div. | 1898

HERRICK, J.

In reviewing a judgment of nonsuit, that view of the evidence must be taken which is most favorable to the plaintiff. The plaintiff, upon the trial for larceny, was declared not guilty of the charge upon which the defendants had caused his arrest; and this case turns upon the question as to whether the defendants had reasonable grounds to believe him guilty of the charge they made against him. “The question of what constitutes probable cause does not depend upon whether the offense has been committed in fact, nor whether the accused is guilty or innocent, but upon the prosecutor’s belief, based upon reasonable grounds. Bacon v. Towne, 4 Cush. 218. The prosecutor may act upon appearances, and, if the apparent facts are such that a discreet and prudent person would be led to the belief that the accused had committed a crime, he will not be liable in this action, although it may turn out that the accused was innocent. Carl v. Ayers, 53 N. Y. 17. If there is an honest belief of guilt, and there exist reasonable grounds for such belief, the party will be justified. But, however suspicious the appearances may be from existing circumstances, if the prosecutor has knowledge of facts which will explain the suspicious appearances, and exonerate the accused from a criminal charge, he cannot justify a prosecution by putting forth the prima facie circumstances, and excluding those within his knowledge which tend to prove innocence.” Fagnan v. Knox, 66 N. Y. 525-528. See, also, Wass v. Stephens, 128 N. Y. 123, 28 N. E. 21; Williard v. Holmes, 142 N. Y. 492, 37 N. E. 480.

Did, then, the defendants have reasonable grounds for believing that the plaintiff, in collecting the 30 cents which they charged him with stealing, intended to deprive or defraud the association of it, or to appropriate the same to his own use? They knew that, at the time he made this collection, he vras engaged in correspondence with them as to his continuance with them, and that he claimed to be still in their employ. On the very day he collected the 30 cents he informed their counsel of the fact, and made a tender of that amount, with other moneys, to the association. This tender was repeated by him thereafter to the superintendent of the company, and again repeated by his attorney. The usual element in such cases of a failure to report a collection, and a withholding of the money, is entirely absent here. They refused to receive the money in question upon the express ground that, at the time he made the collection, he had been discharged by them, and had been forbidden to collect. The}7 knew, however, that at the time of such refusal he had controverted the fact of his .discharge, and was claiming to act for them as their employé. Assuming, however, that they were not satisfied as to the state of his accounts, and did not know how much he had collected, or wrhetherlie had accounted for all that he had collected, still they did know,, from his own statement, of his collection of this particular item, knew that he wras not withholding it from them, or attempting to appropriate it to his own use, and that he had not only reported the same, but had repeatedly offered to pay the same to them. Under such circumstances, I do not see that they w7ere warranted in believing that there was any intent on his part to steal it; and. conceding that he had no longer any authority or legal right to collect it, and, indeed, was prohibited from doing so, yet the mere doing of the prohibited act, unless done with a criminal intent, does not constitute a crime. Hewitt v. Newburger, 141 N. Y. 538-542, 36 N. E. 593.

The motion for a nonsuit asked for by the defendant McArthur w7as upon the ground that he was acting as an attorney and counselor at law, and could not be held liable for malicious prosecution unless there was proof that he knew there was no cause of action against the plaintiff, and unless, also, that he knew7 that his client, the Casualty Insurance Association, was acting from illegal and malicious motives. It has been held that an attorney is personally liable for an improper arrest when he is the direct agent in causing such arrest. Deyo v. Van Valkenburgh, 5 Hill, 242; Sleight v. Leavenworth, 5 Duer, 122. In this case the defendant McArthur made himself a party to the-prosecution and arrest of the plaintiff by personally swearing to the information upon which the warrant of arrest was issued. If an attorney desires the protection of his professional privilege, he must act solely as an attorney and counselor, and not personally become a party to the litigation. , He cannot be party and counsel both. The position of counsel is swallowed up and absorbed by that of a party, and professional privilege will not serve as a shield in such a case. And, as to the facts upon which the charge against the plaintiff was made, he had personal knowledge of them, and knew that the plaintiff had made the collection under a claim of right; and, as an attorney presumed to be learned in the law, he must have known that a wrongful intent —an intent to deprive the association of the money, and to appropriate the same to his own use, or the use of some person other than the true owner—was an essential element in the crime of larceny. '

Even if he did not know the law it would make no difference! “Probable cause may be founded on misinformation as to the facts, but not as to the law.” Hazzard v. Flury, 120 N. Y. 223, 227, 24 N. E. 194. Here he was not misinforméd as to the facts, and they afforded no sufficient ground for his action. “When there is no dispute about the facts, the question of the existence of probable cause, or, as generally stated, the absence or want of probable cause, is a question for the court and not for the jury.” Anderson v. Howe, 116 N. Y. 336, 338, 22 N. E. 695. From the facts in this case it seems tó me that there was nothing upon which a reasonably discreet and prudent man could found a belief that the plaintiff, in collecting the 30 cents, intended to steal, and that, therefore, the trial court erred in granting the .motion for a nonsuit.

Without discussing the other questions argued before us, the judgment should, for the reasons herein set forth, be reversed, and! a new trial granted, with costs to abide the event. All concur.