Brodrib v. Doberstein

• Decision Date: 09 February 1928
• Citation: 107 Conn. 294,140 A. 483
• Court: Connecticut Supreme Court
• Parties: BRODRIB v. DOBERSTEIN.

140 A. 483

107 Conn. 294

BRODRIB v. DOBERSTEIN.

Supreme Court of Errors of Connecticut.

February 9, 1928

Appeal from Superior Court, Hartford County; Edward M. Yeomans Judge.

Action for malicious prosecution by Stephan Brodrib against Edward J. Doberstein, tried to the court. Finding of facts and judgment in favor of plaintiff, and defendant appeals. Error and cause remanded, with instructions.

Frederic J. Corbett, of Hartford, for appellant.

Jacob Schwolsky, Harry Schwolsky, and Ernest M. Biron, all of Hartford, for appellee.

Argued before WHEELER, C.J., and MALTBIE, HAINES, HINMAN, and BANKS JJ.

BANKS J.

The defendant was the lessee of certain premises occupied by him as a lunchroom. The premises were sold by his lessor to the plaintiff, and the defendant moved out. Several days later the plaintiff started to take off certain awnings which were on the front of the building. The defendant protested claiming that the awnings belonged to him by virtue of the fact that when he purchased the business from his predecessor the awnings went with it. The plaintiff, notwithstanding this, removed the awnings, and later, when defendant demanded them, refused to return them. The defendant made complaint to a policeman and later to the prosecuting attorney, and the latter issued a warrant for the arrest of the plaintiff upon a charge of theft. When the case came up for a hearing, it was nolled by the prosecuting attorney, and the plaintiff brought this action for malicious prosecution. The defendant claimed that he laid all the facts in his possession before the public prosecutor and acted upon his advice in instituting the prosecution, and that this was conclusive of the existence of probable cause and a complete defense to this action. The defendant asks to have the finding corrected by adding to it certain paragraphs of the draft finding setting forth in detail his conduct in connection with the complaint and that of the prosecuting attorney who issued the warrant for the plaintiff's arrest. The defendant is entitled to have the facts found upon which he bases his defense that he acted upon the advice of the public prosecutor after stating to him fully and fairly the facts within his knowledge. The finding of the court does not fully state these facts which an examination of the evidence shows were not in dispute. We therefore correct the finding by adding the following facts: The policeman to whom the defendant made complaint made an investigation of the facts and then made a report to the prosecuting attorney of the defendant's complaint and of the results of his investigation. The prosecuting attorney thereupon told the policeman to bring the defendant in for examination. In response to the summons of the prosecuting attorney, the defendant went to his office, and in answer to his inquiries told him the facts regarding his controversy with the plaintiff as to the ownership of the awnings substantially as they had already been reported to him by the police officer. The prosecuting attorney then told the defendant that he had two remedies, one civil and one criminal, and the latter said that he desired to press the criminal complaint. The prosecutor then issued the warrant for the plaintiff's arrest, basing his action upon the facts presented to him by the defendant and by the police officer who had investigated the case.

The existence of probable cause is an absolute protection against an action for malicious prosecution, and what facts, and whether particular facts, constitute probable cause, is always a question of law. Stewart v. Sonneborn, 98 U.S. 187, 25 L.Ed. 116; 38 Corpus Juris, 501. The conclusion of the trial court that the defendant acted without probable cause is therefore a conclusion of law which may be reviewed upon appeal.

Advice of counsel is a complete defense to an action for malicious prosecution when it appears that the defendant made the complaint relying in good faith on such advice, given after a full and fair statement of all the facts within his knowledge, or which he was charged with knowing, and the fact that the attorney's advice was unsound or erroneous will not affect the result. Smith v. King, 62 Conn. 515, 26 A. 1059; Thompson v. Beacon Valley Rubber Co., 56 Conn. 493, 498, 16 A. 554; Porter v. Ritch, 70 Conn. 235, 39 A. 169, 39 L.R.A. 353; McGann v. Allen, 105 Conn. 177, 186, 134 A. 810; Stewart v. Sonneborn, supra; Newell on Malicious Prosecution, 310; 18 R. C. L. 45. In Smith v. King, supra, we approved a charge to the jury that an action of malicious prosecution could not be maintained against a defendant who made complaint to the prosecuting official in reliance upon the advice of counsel, but that the counsel consulted must be unbiased and unprejudiced against the party concerning whom the complaint is made. A public prosecutor, whose duty it is to investigate complaints made to him, and to prosecute only those where there is probable cause to believe that a crime has been committed, and who as a public official has no personal interest in either of the parties to the prosecution, may fairly be assumed to be unbiased and unprejudiced against the party complained of. Accordingly it has been said that the rule that advice of counsel, properly taken and relied upon in good faith, is a defense in such an action, applies with still greater reason when the proceeding complained of was instituted with the approval of the prosecuting officer of the state. 18 L.R.A. (N. S.) 71. " In such case the rule is that, if the complaining party states the facts fairly and fully to the proper officer, and such officer incorrectly determines that such facts constitute a...