Cooper v. Flemming

• Decision Date: 20 December 1904
• Citation: 84 S.W. 801,114 Tenn. 40
• Parties: COOPER v. FLEMMING.
• Court: Tennessee Supreme Court

84 S.W. 801

114 Tenn. 40

COOPER v. FLEMMING.

Supreme Court of Tennessee.

December 20, 1904

Appeal from Circuit Court, Putnam County; Cordell Hull, Judge.

Action for malicious prosecution by Glen Flemming against William Cooper. From a judgment for plaintiff, defendant appeals. Reversed.

L. D Smith, O. C. Conatser, A. Algood, Thos. Finley, and James Cooper, for appellant.

Hamilton Parks, T. L. Denny, and O. K. Holladay, for appellee.

McALISTER J.

The plaintiff below, Glen Flemming, recovered a verdict and judgment against William Cooper for the sum of $1,500, as damages for an alleged malicious criminal prosecution. Pending a motion for a new trial, a remittitur of $500 was entered, and thereupon the court pronounced judgment in favor of the plaintiff for $1,000.

The defendant, William Cooper, appealed, and has assigned errors.

The present suit grew out of the indictment of the defendant in error, Glen Flemming, in the circuit court of Putnam county at the instance of William Cooper, on a charge of willfully and wantonly breaking and throwing down the fence inclosing the land of said Cooper. The indictment was based on subsection 10, § 6496, Shannon's Code, as follows:

"It is declared to be a misdemeanor to willfully and wantonly break, throw down, mar, deface or otherwise injure any fence, hedge or ditch enclosing the land of another."

At the May term, 1900, Flemming was tried on said indictment and acquitted. He thereupon instituted the present action against William Cooper for the malicious prosecution of said criminal cause.

The facts disclosed in the record are that on the 25th of August 1898, William Cooper, for a valuable consideration, bought of Jesse and Lucinda Welch a tract of land comprising about 75 acres, and being a portion of what is denominated in the record the "Huddleston Tract." It appears that Jesse and Lucinda Welch had been in possession of this land, by house and inclosures, since 1874. At the date of said purchase Welch had a small inclosure, of a quarter of an acre, upon said 75-acre tract. It also appears that at the date of the Cooper purchase Mrs. Cornelia Flemming, mother of the defendant in error, also had a deed covering this tract of land, and was asserting title thereto. In October, 1899, the husband of Mrs. Flemming, learning of this inclosure upon the land, and that it was claimed by Cooper, went and removed the same. Cooper, upon learning that Flemming had torn down this inclosure, went to Flemming, and informed him that the inclosure was his; that he (Cooper) had purchased the land from Welch, with said inclosure erected thereon--and informed Flemming that he (Cooper) intended to rebuild the inclosure, and admonished him not to tear it down again. Shortly thereafter Cooper rebuilt the fence, inclosing about 1/4 of an acre, and caused it to be planted in corn. Thereupon the defendant in error, Glen Flemming, acting under the direction and authority of his father and mother, again tore down this improvement, throwing part of the rails over the bluff. Cooper thereupon consulted the Honorable M. G. Butler, attorney general of the district, and laid before him the facts already stated, and, in addition, communicated the fact to the attorney general that Mrs. Flemming, the mother of the defendant in error, Glen Flemming, asserted title to the land, and had title papers covering the same, but that he was in possession of the property, and that the Flemmings had no possession upon this strip of land upon which the inclosure was located. The attorney general, upon the state of facts disclosed to him, was of opinion that it was not a question of title, but of possession, and advised a criminal prosecution against the defendant in error, Glen Flemming. The indictment was thereupon found, with the result already stated.

Now it is insisted in behalf of the plaintiff in error that the uncontradicted evidence shows that, before commencing said criminal prosecution, Cooper consulted the district attorney general, and laid before him all the facts of the case, whereupon said district attorney advised that the facts so stated constituted an offense against the statute, and that said prosecution was begun and carried on in good faith under said advice. It is maintained that there is no evidence whatever to show want of probable cause, and that the advice of the district attorney was a complete defense to this suit.

It is insisted, however, on behalf of the defendant in error, that the plaintiff in error, Cooper, failed to disclose to the district attorney two material facts, viz.:

(1) That he (Cooper) had made a survey and map for J. G. Flemming and wife, showing a deraignment of the Flemming title to this land, and also the Huddleston entry, exhibiting the conflict between the titles, and the superiority of the Flemming claim under the paper title.

(2) It is further insisted that the plaintiff in error failed to disclose to the district attorney the fact that after he bought the land he had told J. J. Flemming and Glen Flemming that he knew nothing of the inclosure in controversy, and had nothing to do with it.

What, then, is the legal effect of the advice of the official representative of the state in respect of this matter?

In some cases it has been held that advice of counsel should be considered rather as tending to rebut malice, than as bearing upon the issue of probable cause. Brewer v. Jacobs (C. C.) 22 F. 217.

While it is true that the advice of counsel may properly be considered by the jury as tending to rebut the existence of malice, we think the weight of authority is that its fundamental purpose is to establish the existence of probable cause, and when said advice has been honestly sought, and all the material facts relating to the case, ascertained or ascertainable by the exercise of due diligence, have been presented to counsel, and a prosecution is commenced in pursuance of such advice, then it is the province of the court to charge the jury, as matter of law, that such advice of counsel entitles the party sued to complete immunity from damages. See extensive note to Ross v. Hixon, 26 Am. St. Rep. 144, where the authorities on this subject are collected.

The trial judge instructed the jury that the advice of the district attorney would be sufficient evidence of probable cause, provided such advice was warranted by the law governing the offense of wantonly and willfully throwing down the fence of another. He further charged that, whether the opinion of the attorney general was justified by the foregoing statute was a question to be determined by the jury. Counsel for plaintiff in error requested the court to charge that the advice of the district attorney, based upon an honest and full presentation of all the material facts, would constitute probable cause, and a complete defense to the action, although such advice was based upon an erroneous construction of the statute. His honor, however, refused the instructions asked.

We are of opinion that in the instructions given, and in the refusal of those submitted on this subject, the trial judge was in error. It is probable the error was committed in following instructions which had been given on this subject by the trial judge in Graham v. Life Association, 98 Tenn. 61, 37 S.W. 995. But an examination of that case will disclose that the question now being considered was not raised, and the charge of the circuit judge was copied into the opinion for the purpose of showing that a supplemental request had been covered by the general charge. It is also true that in Hall v. Hawkins, 5 Humph. 359, it was said, "The fact that a party acted upon the opinion of counsel will not excuse him, if the statement of facts upon which the opinion was founded was incorrect, or the opinion itself unwarranted."

So, in Kendrick v. Cypert, 10 Humph. 291, it was said, "The opinion of counsel, to be available, must be honestly sought and understandingly given." Mauldin v. Ball, 104 Tenn. 598, 58 S.W. 248; Morgan v. Duffy, 94 Tenn. 686, 30 S.W. 735; Vance v. Ph nix Ins. Co., 4 Lea, 385; Memphis Gayoso Gas Co. v. Williamson, 9 Heisk. 342.

A review of the authorities has satisfied us that such a statement of the law is unsound, and in conflict with the overwhelming weight of authority in this country and in England. It is certainly a legal anomaly to say that a man, before commencing a criminal prosecution, may take the advice of counsel, but, if it turns to be unsound, it affords no protection.

But it may be said that knowledge of the law must be imputed to the prosecutor, and that he cannot be deemed to proceed...