(аfter stating the facts). It is earnestly-insisted by counsel for appellant that the evidence is not legally sufficient to support the verdict.
At the outset it may be stated that, to justify an action for malicious prosecution, both want of probable cause and malice must be shown. Keebey v. Stifft,
It is well' settled in this State that proof that the defendant in an action for malicious prosecution acted upon the advice of counsel learned in the law, or upon the advice of the public prosecutor, given after a full and fair statement of all the known facts, will be a complete defense to an action for malicious prosecution, because it is conclusive evidence of the existence of probable cause. Kansas & Texas Coal Co. v. Galloway,
There has been some confusion in this State as to whether the rule with rеgard to the advice of* counsel as a defense to an action for instituting a criminal prosecution is applicable to an action for maliciously bringing a civil suit.
In the early case of Lemay v. Williams,
In the subsequent case of Kansas & Texas Coal Co. v. Galloway,
It also appears from the later case of Harr v. Ward,
In Stewart v. Sonneborn,
Indeed, there is more. reason for the rule in suits for malicious prosecution based upon civil аctions than in those predicated upon criminal prosecutions.. Under our system of laws, the .advice of the prosecuting attorney might be sought before an arrest was made, but where a civil action wаs to‘ be. commenced the party originating it must act upon his own advice, or upon the advice of private counsel. When a person resorts to .the advice of reputable counsel learned in the law and makes a full and fair disclosure of the. facts in his possession, and in good faith acts upon the advice of counsel, this ought to; protect him from a suit, for damages for malicious prosecution. The reason is that the party acting has done all that he could he expected to do to enable him to act safely. If this course of conduct, did not protect him, no one 'would feel safe in seeking redress for his civil wrongs in the courts.
Generally, “want of probable ' cause” is a mixed question of law and fact, and should be submitted to the jury under proper instructioiis; but, where there is no dispute about the facts, it is the duty of the court to apply the law to them and declare their legal effect without the intervention of a jury.
There is no dispute about the facts in this case, and nothing from which a jury might legally infer that appellant was actuated by malice, express or implied, or that there was want of probable cause in bringing the chancery suit to set aside the deed from Chambers to Mrs. Mann. Appellant had obtained judgmеnt against Chambers for $678.53 for merchandise sold by it' to him. Chambers had a tract of land of several hundred acres near Cotton Plant, Woodruff County, Arkansas; but an investigation by appellant showed that this was incumbered for аbout all that it was worth. Chambers had about 500 acres of land there, and it was incumbered for something between $25,000 and $50,000. Chambers also had a contract for construction work at Helena, and a large payroll. Appellant sent its claim to a firm of attorneys at Helena, and the claim was returned with a report that he was hopelessly insolvent. Later on Chambers was adjudged a bankrupt.
On May 2, 1922, appellant wrote Berry & Wheeler, a firm of reputаble attorneys at Marion, in Crittenden County, Ark., to collect their account against Chambers. They informed appellant that Chambers owned about 600 acres of land in Crittenden County, Ark., and that he was trying to’ dispose of it. His residence was given' as Memphis, Tenn., and the attorneys were asked to attach the real estate, on the ground that Chambers was a nonresident. The letter concludes as follows:
“This account reрresents goods shipped this debtor in 1920. We are given no consideration whatever, we consider it a dangerous account, and we ask therefore that you will immediately look up the records on the real estate and attach the same. The writer will appreciate highly your writing us immediately, whether or not you will he able to subject this real estate to our debts.” On May 5,1922, Berry & Wheeler replied as follows:
“On April 4, 1921, he received a deed from Rоbert Mann and wife, Marie C. Mann, for 580 acres of land. Then on June 22, 1921 (three days before the deed to him was filed for record), he deeded this property to Marie Chambers Mann, which deed was not filed for record until January 18, 1922. The two deeds show exactly the same consideration. It appears suspicious to us that this occurred in this way, but we have no knowledge of any other facts constituting fraud. If Chambers has no other рroperty, it would probably be advisable to institute suit in chancery to set aside the deed to Mrs. Mann for fraud, and advise that the suit, if one is to be started, be brought at once.”
Again, on May 18, 1922, Berry & Wheeler wrote to appellant, stating that it would be hard to get any other evidence of fraud except such as might be elicited on cross-examination of the interested parties. Appellant was advised that attorneys could not аssure it of any success in the handling of the suit, but advised the bringing of the suit if it turned out that Chambers had no other property out of which to make the debt. Appellant was advised that there was no possibility of damages against it for bringing the suit.
Subsequently Berry & Wheeler brought suit in the chancery court against appellee and Chambers to set aside the deed from the latter to the former. The suit was not successful, because appellant was not able to secure any other evidence of fraud than that above stated.
It is not contended that appellant was actuated by express malice in bringing the suit in chancery to set aside the deеd, and we do not think implied malice can be legally inferred from the circumstances recited. Appellant stated all the facts within its knowledge to a firm of reputable attorneys, and acted upon their advice in bringing the suit. It is true that they were not able to obtain sufficient testimony to warrant the chancellor in setting aside the deed as having been executed in fraud of the rights of appellant as a creditor of Chambers. Chambers and, Mrs. Mann were brother and sister, and this fact, coupled with the fact that the deed in question was withheld from the record for about six months, and that Chambers, although a man of large affairs, was failing and refusing-to pay a debt of between $600 and $700, show that there was no want of probable cause, and that appellant acted in good faith in bringing the suit in chancery to set aside the deed from Chambers to Mrs. Mann. An investigation had shown that there was no other property subject to the judgment of appellant, and its purpose seems to have been to collect its debts in the only way available to it.
It is shown in this case that Chambers had an automobile in Memphis at this time, but it is not shown that appellant knew of this fact. In any event, the automobile was only worth about $600, and this would not have satisfied the debt and costs of appеllant against Chambers. It is not shown that appellant had any ill feeling whatever against Chambers, or that it was actuated by any other motive than that of collecting its debt in the manner advised by a firm of reputable аttorneys.
If every man who brings- a suit against another upon the advice of reputable attorneys, after having acted upon all the available information given them, is responsible in damages for the cоnsequence of this action, if he fails in his suit, then no one would dare resort to the courts to redress his wrongs, and the result would be to encourage fraud and concealment of their affairs by debtors. The successful prosecution of civil actions may fail from many causes independent of the right or wrong of the matter. Hence, in order to maintain- a suit for damages for malicious prosecution, it is neeessary for the plaintiff to prove malice, express or implied, and the defendant may justify hy showing that' he has acted upon the advice of counsel in good faith after making a full and fair disclosure to him of all the facts in the premises. ’ -
This court’has held that it is not .error to give a peremptory instruction for the defendant in an action for malicious prosecution where there was no testimony tending to prove maliсe or want of probable cause. Price v. Morris,
The request of the defendant for a peremptory instruction should have been granted; and, for the error in refusing to give it, the judgment is reversed, and, inasmuch as the facts seem to have been fully developed, the cause of action will be dismissed here.