Brobst v. Ruff
| Decision Date | 02 October 1882 |
| Citation | 100 Pa. 91 |
| Parties | Brobst <I>versus</I> Ruff. |
| Court | Pennsylvania Supreme Court |
Before SHARSWOOD, C. J., MERCUR, GORDON, PAXSON, TRUNKEY, STERRETT and GREEN, JJ.
ERROR to the Court of Common Pleas of Lehigh county: Of January Term 1882, No. 74.
Henninger (De Walt with him), for the plaintiff in error.— It was too late, after verdict, to amend the narr. in so essential a matter as the laying of damages: 2 Chitty's Pleading 4 (7th ed.).
There is every reason why the advice of a magistrate, who is a judicial officer, should be of equal weight as that of an attorney in rebutting the allegation of malice and want of probable cause. The question has never been decided by this court, but the rulings of the old District Court of Philadelphia, and of the Common Pleas No. 4, are in support of our contention. In Rosenstein v. Feigel, 6 Phila. 532, HARE, P. J., says, "It is difficult to see why a frank and full disclosure of all the circumstances of a real or supposed wrong to a magistrate, should not follow the same rule (as in the case of an attorney at law) if the magistrate decides, and so informs the complainant that the circumstances detailed constitute the offence for which the arrest is made;" . . . "it would seem obvious that proceedings instituted under such circumstances should not be held malicious and without probable cause, unless enough is disclosed by the evidence to exclude the natural inference that the prosecutor acted in good faith under the advice of the magistrate." This decision was followed by the common pleas in Thomas v. Paynter, 1 W. N. C. 300. In this case the defendant offered to prove that he made a full and fair statement of all he knew concerning the alleged larceny, to the justice, and that he then followed his advice in bringing the prosecution. Magistrates are daily required to decide as to what constitutes probable cause, for without that there can be no binding over or commitment. The law makes them the judge of the advisability of a prosecution and of its justice. This being so, how can it reasonably be said that he who consults them and follows their advice shall be legally responsible if mistake be made? Did the defendant act in good faith? Unless there be evidence to the contrary the presumption of law is that he did, and there is no testimony in the cause showing that he did not use all due caution.
The offer was at least admissible, in connection with other evidence, in mitigation of damages.
John D. Stiles (Harry G. Stiles with him), for the defendant in error.—The defence of having acted upon professional advice is held to be a peculiar one, and strictly confined to the case of advice obtained from lawyers: Beal v. Robeson, 8 Ired. 276; Olmstead v. Partridge, 16 Gray, 381; Straus v. Young, 36 Md. 246; Walter v. Sample, 1 Casey, 275; Hewlett v. Cruchley, 5 Taunt. 277; Ravenga v. Mackintosh, 2 B. & C. 693; Stone v. Swift, 4 Pick. 393; Snow v. Allen, 1 Stark. 502; Hall v. Suydam, 6 Barb. 84; Cooper v. Utterbach, 37 Md. 282.
A declaration may be amended after verdict in any way that tends to a promotion of justice: Bailey v. Musgrave, 2 S. & R. 219; Tassey v. Church, 4 W. & S. 141; Trego v. Lewis, 8 P. F. S. 463.
To maintain an action for malicious prosecution, the plaintiff must prove the prosecution to have been made without probable cause, and that the prosecutor was actuated by malice towards the plaintiff. Malice may be inferred from the want of probable cause; but if there be probable cause, it matters not that the prosecution be malicious. If the act be lawful the motives of the prosecutor will not be inquired into. Whether certain facts constitute probable cause, must be determined by the court; but, whether such alleged facts exist, is for the jury to find. The law applicable to the case was correctly stated by the learned judge, and we discover no error in the admission of evidence.
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