Haines v. The Atchison

• Decision Date: 12 February 1921
• Docket Number: 22,982
• Citation: 195 P. 592,108 Kan. 360
• Court: Kansas Supreme Court
• Parties: SAM HAINES, Appellee, v. THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, Appellant

195 P. 592

108 Kan. 360

SAM HAINES, Appellee, v. THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, Appellant

No. 22,982

Supreme Court of Kansas

February 12, 1921

Decided January, 1921.

Appeal from Cowley district court; OLIVER P. FULLER, judge.

Judgment reversed.

SYLLABUS

SYLLABUS BY THE COURT.

MALICIOUS PROSECUTION--Complaint Made on Advice of Prosecuting Attorney--What Information Should Be Given to Prosecuting Attorney. In an action to recover damages for malicious prosecution, a complete defense is made by proving that the complaining witness obtained all the available information concerning the commission of a crime, except such as might have been acquired from the suspected person, and truthfully placed all that information in the hands of the deputy county attorney, and that the deputy county attorney advised and directed that the prosecution be commenced.

William R. Smith, Owen J. Wood, and Alfred A. Scott, all of Topeka for the appellant.

Alfred M. Jackson, of Winfield, for the appellee.

Marshall J. Dawson, J., Burch, J. concurring. Mason, J., Porter, J., concur with Justice Burch.

OPINION

MARSHALL, J.:

The plaintiff in an action for damages for malicious prosecution recovered judgment for $ 2,612, and the defendant appeals.

The plaintiff was arrested and placed in jail on the complaint of Minor Shaw, special agent of the defendant, charged with having stolen brass of the value of $ 25, the property of the defendant. A preliminary examination was held, but only by inference can it be deduced that the plaintiff was bound over for trial. The plaintiff alleged that the criminal prosecution was dismissed in the district court; other than that allegation, there is nothing to show the final disposition of that action.

In the present action, special questions were answered by the jury as follows:

"1. Did Minor Shaw, special agent of the defendant, ascertain and present the facts upon which the warrant was issued to Ed. J. Fleming, deputy county attorney, or did said deputy county attorney obtain the facts upon which he advised the prosecution from other sources? A. Yes, from Minor Shaw.

"2. Did Ed J. Fleming, deputy county attorney, and W. J. Gray know the facts and decide that a warrant ought to be issued before Minor Shaw knew of the alleged theft of brass? A. No.

"3. Did Minor Shaw sign and swear to the complaint involved in this case and upon which the plaintiff was arrested, at the instance on behalf of the railroad company or at the instance and upon the request of Ed J. Fleming, deputy county attorney? A. Yes, agent of the A. T. & Santa Fe.

"4. Did the plaintiff, Sam Haines, have in his possession at the time of his arrest a large quantity of broken brass which had been battered and from which any initials which have been upon it would not appear? A. Yes, defaced but unknown to jury who done this.

"5. Had Sam Haines, plaintiff, prior to the filing of the complaint in the justice court, told conflicting stories as to where he got the brass in his possession? A. No.

"6. Do you find that there was probable cause for believing that the plaintiff Sam Haines had stolen the brass in his possession from the A. T. & S. F. Ry. Co., at the time the complaint was filed? A. No.

"7. Did Ed J. Fleming, deputy county attorney, advise the said Minor Shaw, before he signed and swore to the complaint, that the evidence which had been obtained by W. J. Gray and Minor Shaw was sufficient to justify the arrest of the plaintiff Sam Haines? A. Yes.

"8. Did the defendant A. T. & S. F. Ry. Co., or its employee acting under the authority of the company request or procure the issuing of the warrant upon which the plaintiff was arrested? A. Yes.

"9. If you find for the plaintiff do you find that Minor Shaw, special agent of the defendant, stated anything to Deputy County Attorney Fleming with reference to the information he had of the probable guilt of the plaintiff that was not true? A. No.

"10. If you find that Minor Shaw, special agent of the defendant, made any false statements to the deputy county attorney, or failed to state any facts known to him with reference to the probable cause of plaintiff's guilt, state specifically what fact or facts known to him were falsely stated or omitted by the said Minor Shaw? A. No."

Among other instructions, the court gave the following:

"Under the law of this state the county attorney or his authorized deputy is the legally constituted officer to advise, bring and prosecute all actions for violations of the criminal laws of the state. And where a person having knowledge or information that a crime has been committed goes to the county attorney or his authorized deputy and in good faith states to such prosecuting officer all the facts known to him at the time, and all facts which could be learned by a diligent effort upon his part pertinent to such information, and after so stating such facts known, after having made a diligent effort to ascertain all the facts, follows and acts upon the advice of the county attorney, then he would not be liable in damages, even though the prosecution failed, or even though it might afterwards develop that there was not probable cause for the institution of such prosecution. But before a defendant can be exonerated from liability all the facts must be laid before the prosecuting officer, not only all which are known to the informant, but all which can be learned by a diligent and faithful effort to acquire pertinent information.

"If you find from the evidence that Minor Shaw was not acting for and on behalf of the defendant railroad company at the time he signed the complaint or that he was simply acting as an individual, or if you find that Minor Shaw or W. J. Gray, or he and Gray together, informed the county attorney of all the facts in relation to such alleged crime, and all the information which could be learned by them by diligent and faithful effort that was pertinent to the case, or if you find that the plaintiff was guilty of larceny of the goods in controversy, then the plaintiff cannot recover in this action."

The principal argument by the defendant is that--

"All of the facts known to the prosecuting witness having been presented to the county attorney, and he having advised the prosecution, any presumption of malice or want of probable cause was completely rebutted."

This compels an examination of the answers by the jury to the special questions submitted, particularly questions 7 and 10, compels an examination of the instructions quoted, and of the rule declared in Railroad Co. v. Brown, 57 Kan. 785, 48 P. 31.

The answer to the 7th question shows that the county attorney advised Minor Shaw that the information submitted was sufficient to justify the arrest of the plaintiff. The answer to the 10th question shows that Minor Shaw did not make any false statement to the county attorney and stated to him all of the facts known by Minor Shaw with reference to the plaintiff's guilt. The answers to the special questions do not show that Minor Shaw made diligent effort to acquire information concerning the guilt of the plaintiff.

The plaintiff concedes that "the law is well settled that it is a good defense in such an action as this, if before the commencement of the prosecution, the complainant presented the matter to an attorney, fairly stating to him all the facts, and then in good faith followed the advice of the attorney." But he contends, "This law has no application to the facts in this case, because the complaining witness did not state all the facts to the attorney, nor did he state facts which he could have obtained by even a very superficial investigation."

The plaintiff relies on the rule declared in Railroad Co. v. Brown, 57 Kan. 785, 48 P. 31, where this language was used:

" The advice of legal counsel, as to the institution of a criminal proceeding, sought and acted upon in good faith, will absolve one from damages for malicious prosecution; but only where all the facts known to the informant, and all which can be learned by a diligent effort to acquire information, have been laid before such counsel." (Syl. P 3.)

This rule was restated in Drake v. Vickery, 81 Kan. 519, 106 P. 290.

In Dolbe v. Norton, 22 Kan. 101, this language is found:

" Where a person, acting in good faith, and under the advice of counsel learned in the law, mistakenly institutes a prosecution against another person who is not liable, and the prosecution fails, the prosecutor does not thereby render himself liable to an action for malicious prosecution, or to any other action." (p. 105.)

In Schippel v. Norton, 38 Kan. 567, 16 P. 804, this court said:

"It is a good defense to an action for malicious prosecution, that the defendant, before commencing the alleged malicious prosecution, it being a criminal prosecution, presented the matter to the county attorney, fairly stating to him all the facts, and then in good faith followed the advice of the county attorney." (Syl. P 1.)

It must be noted that in the two cases last cited, nothing was said about information that might have been acquired by diligent effort.

An exhaustive note on "Advice of counsel as defense to an action for malicious prosecution" is found in 18 L.R.A. N.S. 49-74. From this note, we learn that there are three conflicting rules followed in different jurisdictions, involving the advice of counsel as a defense in actions for malicious prosecution. One rule is that--

"Advice of counsel, to be available as a defense in an action for malicious prosecution, must have been given on a full and fair statement by the prosecutor of all the facts known to him, or which by proper diligence he could have ascertained." (p. 60.)

Another rule is stated...