Hamilton v. Smith

• Decision Date: 09 October 1878
• Citation: 39 Mich. 222
• Court: Michigan Supreme Court
• Parties: James Hamilton and Albert B. Dunning v. George H. Smith

39 Mich. 222

James Hamilton and Albert B. Dunning v. George H. Smith

Supreme Court of Michigan

October 9, 1878

Submitted June 6, 1878; June 7, 1878

Error to St. Joseph.

Malicious prosecution. Defendants bring error.

Judgment reversed with costs, and a new trial granted.

Brown Howard & Roos for plaintiffs in error. In an action for malicious prosecution the jury should be instructed as to the law upon each of the several phases of the facts, 1 Am. Lead Cas., 218; Bourne v. Stout, 62 Ill. 261; Driggs v. Burton, 44 Vt. 124; Cole v. Curtis, 16 Minn. 182; Stone v. Crocker, 24 Pick. 81; Travis v. Smith, 1 Penn. St., 234; Hill v. Palm, 38 Mo. 13; 1 Hilliard on Torts, 244-8; compensation for remote and accidental consequences are not within the scope of the law in any action, Knight v. Wilcox, 14 N. Y., 413; Haynes v. Sinclair, 23 Vt. 108; Sedgwick on Damages, 89; reliance in good faith on the advice of counsel is a defence against an action for malicious prosecution, Wicker v. Hotchkiss, 62 Ill. 107; Burgett v. Burgett, 43 Ind. 78; Potter v. Seale, 8 Cal. 217; Ross v. Innis, 26 Ill. 259; Williams v. Vanmeter, 8 Mo. 339; Eastman v. Keasor, 44 N. H., 518; Josselyn v. McAllister, 22 Mich. 300; Stanton v. Hart, 27 Mich. 542; the fact that a man has been held for trial on examination by a magistrate is prima facie evidence of probable cause, Payson v. Caswell, 22 Me. 212; Whitham v. Gowen, 14 Me. 362.

H. H. Riley and T. C. Carpenter for defendants in error. The action for malicious prosecution lies for damage to the person, reputation or property, Savil v. Roberts, 1 Salk. 13; Potts v. Imlay, 1 South. (N. J.), 330; Munns v. Dupont, 1 Am. Lead. Cas., 207; if a crime is charged on which arrest is made and action brought, an action for malicious prosecution is sustainable per se on showing a want of probable cause, Frierson v. Hewitt, 2 Hill (S. C.), 499; the principles of the action are stated in Farmer v. Darling, 4 Burr. 1971; "probable cause" is a reasonable ground of suspicion supported by circumstances strong enough to warrant a cautious man in believing the accused guilty of the offense with which he is charged, Munns v. Dupont, 3 Wash. 31; Broad v. Ham, 5 Bing. N. C., 722; Braveboy v. Cockfield, 2 McMull. (S. C.), 270; Sims v. M'Lendon, 3 Strobh. 557; Ulmer v. Leland, 1 Me. 135; there must be actual belief in his guilt and reasonable ground for it, Burlingame v. Burlingame, 8 Cow. 141; Merriam v. Mitchell, 13 Me. 439; Raulston v. Jackson, 1 Sneed 132; Faris v. Starke, 3 B. Mon., 4; Gallaway v. Burr, 32 Mich. 332; the prosecutor's mere belief is no evidence of probable cause, Winebiddle v. Porterfield, 9 Penn. St., 137; Lawrence v. Lanning, 4 Port. (Ind.), 196; Jacks v. Simpson, 13 Ill. 701.

OPINION

Graves, J.

This writ of error is brought to reverse a judgment for $ 3500 rendered in Smith's favor on a charge of malicious prosecution. Some preliminary explanation is requisite. In the summer of 1876 the wife of Hamilton instituted her suit by bill against him for a divorce, and he employed the defendant Dunning, a solicitor, to make defense for him. In due season Dunning put in Hamilton's answer and it contained a charge of adultery by Mrs. Hamilton with Smith. But shortly before the answer a sworn statement of one Whittenberg was obtained to the effect that Smith had recently committed the offense against nature, and Hamilton made complaint before a justice therefor against Smith, who was consequently arrested upon such charge. On being taken before the justice he asserted his innocence, but waived examination and was forthwith committed for want of bail to answer in the circuit court. After several months imprisonment he was informed against for the offense preferred by Hamilton's complaint and was put upon trial. No evidence was adduced against him and he received an acquittal from the jury.

This action was brought for such prosecution and imprisonment. The declaration contained two counts.

The first charged in substance and apart from technical terms and additions that the proceedings were contrived and brought about by a conspiracy between Hamilton and Dunning and with the final design of making use of such proceedings, and of the control they would give and the facilities they would afford to extort from Smith a confession on oath of the adultery charged in Hamilton's answer and in such shape as to be susceptible of use as evidence in support of the charge.

The second count omitted the allegation of conspiracy and some matters of explanation and simply complained of Hamilton and Dunning as joint wrong-doers in the transaction.

The plaintiffs in error were not entitled to have the jury charged in the terms of any of their requests. But it appears obvious that the instructions given were not suitable or sufficient.

To maintain a suit for malicious prosecution three distinct propositions must be established:

First. The fact of the alleged prosecution and that it has come to a legal termination in the plaintiff's favor.

Second. That the defendant had not probable cause.

Third. That he acted from malicious motives.

No question has arisen respecting the existence of the prosecution or of its having ended, and in the acquittal of the plaintiff. Hence nothing need be said in regard to the first proposition.

As to the second, when that is controverted as in this case, it is incumbent on the plaintiff to make out that the defendant did not have probable cause, and in order that the controversy upon the question may be intelligently disposed of, an understanding of what is probable cause is indispensable. Unless the jury are informed and know, they cannot tell whether there was such cause or not. No standard is afforded with which to compare the state of facts ascertained to have existed.

As lawful grounds may exist to justify a party in setting the criminal law in motion, although it turn out that no offense has been committed, or if committed, not by the accused, so it follows that what is probable cause is not contingent upon the fact of the guilt of the accused. This is evident. The law itself ordains that prosecution shall be the method for solving the question whether one has committed crime or not, and as prosecution is therefore a necessary antecedent, the law would violate common sense and destroy itself if it were to say that the act of prosecuting must yet wait for knowledge of the guilt of the suspected party.

In case the information possessed is believed and is such and from such sources that the generality of business men of ordinary "care, prudence and discretion" would prosecute upon it under the same conditions, there is probable cause. Gallaway v. Burr, 32 Mich. 332; Fagnan v. Knox, 66 N.Y. 525; Heyne v. Blair, 62 N.Y. 19; Bacon v. Towne, 4 Cush. 217; Wheeler v. Nesbitt, 65 U.S. 544, 24 HOW 544. And if it appear that the defendant had probable cause the action must fail, no matter how wicked or flagitious may have been the real motive. The circumstances having been such as would have justified a man of rectitude in moving in obedience to his duty as a citizen, the law will not inquire whether he who did move was governed by base motives or not. The act in itself being proper, the bad purpose in the mind is left to the penalties of the moral law.

But a man has no right to set the criminal law in motion against another upon mere conjecture that he has committed crime. And when neither the conduct of the accused apparent to the accuser, nor the information of the latter, are sufficient to warrant the just suspicion before pointed out, there can be no justification (Churchill v. Siggers, 3 El. & Bl. 937) and a person cannot shield himself from liability by claiming that appearances afforded probable cause, if the fact be that the circumstances and information were falsely and unreasonably construed or applied. Fitzjohn v. Mackinder, 9 C. B. (N. S.), 505. Much less can he do so if he was aware that the accused was in fact guiltless; or was aware of matters which would have explained the unfavorable appearances and exculpated the accused and did not divulge them; or was privy to the fact that in order to give a colorable basis for prosecution trickery and fabrications were resorted to and appearances of suspicion raised by conspiracy or other corrupt means; or if the chief appearances of suspicion and the prosecution were due to a corrupt plot by the prosecutor, or by him and another, and were brought about pursuant to such plot to the end of being used as means to coerce the accused to swear that improper relations existed between him and the prosecutor's wife.

Enough has probably been said for the purpose of this case upon what is "probable cause." So much depends upon the identical circumstances of the individual case that there is difficulty in explaining by instances.

A point of great importance remains however to be noticed. It is the province of the jury to ascertain what state of facts exists, and it is the province of the judge to decide whether that state of facts constitutes probable cause, and the law intends that these functions shall be kept distinct. But as the law appropriate to the facts cannot be laid down unequivocally until it is ascertained what the facts are, it is found necessary where they are in dispute to submit the whole subject to the jury under proper instructions as to the rule of law to be applied according as they find one state of facts or another. The law belonging to any state of facts subject to be found being given to them in advance, they are enabled on coming to an agreement as to what is the true state of facts, to apply the law delivered to them as belonging thereto, and to formulate the result.

Here the facts were in dispute, but...