Plаintiff, Leslie Wilson, brought suit against defendant Jerry Yono for malicious prosecution. Wilson had been acquitted of uttering and publishing a forged instrument, contrary to MCLA 750.249; MSA 28.446, and defendant had been the complaining witness in that prior case. Plaintiff alleged in his complaint that defеndant had caused the prosecution to be instituted without probable cause to believe plaintiff had committed that crime. At the close of the proofs, the trial *443 judge granted defendant’s motion for a directed verdict, and plaintiff appeals by right.
The tort cause of action for malicious prosecution was developed as a means to resolve the inherent conflict between an individual’s interest in avoiding unjustifiable and oppressive litigation of criminal charges and society’s interest in effective law enforcement through full reporting of suspected criminal activity. The elements of this cause of action are (1) a criminal proceeding instituted or continued by the defendant against the plaintiff, (2) termination of the proceeding in favor оf the accused, (3) absence of probable cause for the proceeding, and (4) "malice” or a primary purpose other than that of bringing the offender to justice. Prosser, Torts (4th ed), § 119, p 835;
Weiden v Weiden,
It is clear that defendant cannot be held responsible unless he has taken some active part in instigating or encouraging the prosecution. Therefore, the following rule was develоped to handle one frequently occurring set of circumstances:
"If the prosecuting witness has in good faith fully and fairly stated all thе material facts within his knowledge to his own attorney or the prosecuting attorney and acted upon his or their advice, proof of the fact establishes a case of probable cause.” Swaney v John Schlaff Creamery Co,212 Mich 567 , 569-570;180 NW 599 (1920).
That rule has been consistently applied in a long linе of Michigan cases. See,
Christy v Rice,
To come within the scope of the above rule, the complaining witness does not have to go directly to the prosecutor. Several cases have held that the defendаnt was not liable, as a matter of law, where he went to the police, the police made an independent investigation, and the prosecutor instituted charges upon the recommendation of the police department. See, for exаmple,
Gooch v Wachowiak,
The facts as to defendant’s actions with respect to the police department and the prosecutor’s office are undisputed. Plaintiff cashed a check at defendant’s store in February, 1970. That check was drawn on the account of Central Identification Detective Agency [CID] and contained the forged signature of Wilius Harris, the owner of CID. When the check was returned fоr insufficient funds, defendant called Mr. Harris and was told that the check was stolen. Defendant contacted plaintiff at least onсe, but the substance of their conversation was in dispute. Plaintiff claimed that *445 he referred defendant to Harris, while defendant claimed that plaintiff assured him that he would make the check good.
Defendant finally went to the police. He testified at trial that he informed them about a "bad” check he had received, never characterizing it as a "stolen” check. Further, he testified that he did not specify any individual as the wrongdoer. Several police witnesses stated that the police department madе an independent investigation. Mr. Harris was contacted, and he stated that the check was stolen and forged and that he had nеver issued a check to plaintiff. When initially contacted by the police, plaintiff told them that the check was a paycheck from Mr. Harris. After that investigation, the police requested the prosecuting attorney to issue a warrant for plaintiff’s arrest. They also requested defendant to come down and swear out a complaint before a magistrate, which he did.
It is cleаr that the trial judge acted properly in dismissing the case for defendant did not instigate the prosecution here. There was a full disclosure by the defendant of all material facts within his knowledge. A warrant was then issued upon the recommendation of the police, and defendant merely acquiesced in signing the complaint. As the Court concluded in Christy v Rice, supra, p 566:
"It must be assumed that defendant, in swearing to this affidаvit, if he himself believed the truth of the statements, was acting under the direction of the prosecutor, and had the right to assume that the рrosecutor was instituting the suit on behalf of the public.”
The trial judge properly granted defendant’s motion for a directed verdict.
We do not want to be understood as saying that *446 рlaintiff lacked probable cause to actually instigate a prosecution against defendant. There is probable сause to do so when:
"[T]he information possessed is believed and is such and from such sources that the generality of business men [sic] of ordinary 'care, prudence and discretion’ would prosecute upon it under the same conditions * * * Hamilton v Smith,39 Mich 222 , 226 (1878).
Where there is no dispute аs to the facts available to the defendant upon which he relied when he signed the complaint, the existence or want of probable cause on his part is a matter of law to be determined by the court,
Clanan v Nushzno, supra, Baker v Barach, suprа, Sottile v DeNike, supra, LaLone v Rashid,
The trial judge would also have been correct if he had held that defendant Yono had probable cause to actively instigate a prosecution against plaintiff. The following facts were undisputed: that the plаintiff passed a check payable to himself, drawn on Central Identification Detective Agency, to defendant; that defendаnt cashed the check and paid to plaintiff $72.12 in cash and merchandise; that the owner of Central told plaintiff that the check was stolen and forged; that plaintiff offered no explanation to defendant as to how he gained possession of the fоrged check; and that the police recommended prosecution of plaintiff after an investigation. A prudent businessman would be certain to prosecute under those circumstances.
Plaintiff raised two other issues on appeal, but they do not merit discussion.
Affirmed, costs of this appeal to defendant.