Hicks v. Brantley

• Decision Date: 10 August 1897
• Citation: 29 S.E. 459,102 Ga. 264
• Parties: HICKS v. BRANTLEY.
• Court: Georgia Supreme Court

29 S.E. 459

102 Ga. 264

HICKS v. BRANTLEY.

Supreme Court of Georgia

August 10, 1897

Syllabus by the Court.

1. A right of action for a malicious prosecution exists only when the prosecution is the result of a desire to injure the accused. In such an action malice against the accused may be inferred from want of probable cause, but the want of probable cause will not be inferred, even though malice is shown to have existed.

2. When the circumstances show that no reasonable grounds for the prosecution exist, the want of probable cause is established and, while it is competent, in such action, to show that the prosecution was undertaken on the advice of counsel to show that there was probable cause for such prosecution, the fact that such advice was given is only one of the circumstances of the case for consideration by the jury. (a) When, however a person in good faith truthfully communicates to the solicitor general all facts known to the former in relation to a criminal charge against another, and is advised that the facts as stated constitute an indictable offense, and such person becomes the prosecutor on an indictment prepared and submitted to the grand jury by such officer, he cannot be held liable in damages for a malicious prosecution at the suit of the accused, even though on the trial under the indictment it appears that the facts as stated do not constitute a crime, and that the defendant was not in fact guilty of any offense.

Error from superior court, Laurens county; John C. Hart, Judge.

Action by C. W. Brantley against Henry Hicks. Plaintiff had judgment. A motion for a new trial was overruled, and defendant brings error. Reversed.

Anderson, Felder & Davis, J. B. Hicks, and Evans & Evans, for plaintiff in error.

A. F. Daley, for defendant in error.

LITTLE J.

The facts are set out in the official report. Brantley brought an action to recover damages against Hicks for a malicious prosecution. There was a verdict for the plaintiff, and a motion for a new trial, which was overruled. The motion was on the general grounds, and alleged error in giving to the jury certain charges and in refusing to charge as requested. The legal questions involved are dealt with by us as indicated in the headnotes of the case, and as therein set out.

1. A cause of action where damages are sustained by one in consequence of a prosecution carried on maliciously and without any probable cause against him is given by the common law against the person instituting such prosecution, and is specially recognized by our statute. Civ. Code, § 648. To recover in such an action, it is necessary that both malice and want of probable cause should concur. In a legal sense, any unlawful act which is done willfully and purposely to the injury of another is, as against that person, malicious. 1 Hil. Torts, p. 446. To establish malice sufficient to authorize a recovery in cases of this kind, it is not necessary to prove the existence of personal hatred, ill-will, or motives of revenge on the part of the prosecutor towards the accused. Haddrick v. Heslop, 12 Adol. & E. (N. S.) 267. Mr. Newell, in his work on Malicious Prosecution, defines the action to be a judicial proceeding instituted by one person against another from wrongful or improper motives, and without probable cause to sustain it, and gives to the term "malicious prosecution" the import of "a causeless" as well as an ill-intended prosecution. See section 5. He says, further on (section 8), that the want of probable cause is the essential ground of the action, and this court, in the case of Marable v. Mayer, 78 Ga. 710, 3 S.E. 429, held it to be essential that an allegation of a want of probable cause must be distinctly made in the declaration. Indeed, want of probable cause lies at the foundation of the action. Malice sufficient to sustain a recovery may be inferred from want of probable cause, but the want of such cause may never be inferred from malice (Ventress v. Rosser, 73 Ga. 535; Marable v. Mayer, 78 Ga. 710, 3 S.E. 429); Coleman v. Allen,

79 Ga. 643, 5 S.E. 204, distinctly repudiated the doctrine ruled in an English case (10 Exch. 352) that "any motive other than that or simply instituting a prosecution for the purpose of bringing a person to justice is a malicious motive on the part of a person who acts in that way." It has been ruled in many states that the motive is immaterial if there was probable cause (Miller v. Milligan, 48 Barb. 30; Huddleston v. Borough of West Bellevue, 111 Pa. St. 111, 2 A. 200; Flickinger v. Wagner, 46 Md. 580; Ames v. Snider, 69 Ill. 376; Smith v. Austin, 49 Mich. 286, 13 N.W. 593), or if the accused is guilty of the offense charged (Adams v. Lisher, 3 Blackf. 241; Foshay v. Ferguson, 2 Denio, 617); and such we understand to be the meaning of our statute. If there is a total want of probable cause upon which to base a charge that the accused is guilty of the crime in question, then it would be a causeless prosecution, and the person instituting it cannot be protected by averring the want of malice on his part. It will be inferred that it was an evil motive that prompted one, in the absence of any probability of the guilt of the accused, to inaugurate a criminal prosecution against another; and such motive answers the malice required by the statute. The probable cause referred to has been defined to be "the existence of such facts and circumstances as would excite the belief in a reasonable mind, acting on the facts within the knowledge of the prosecutor, that the person charged was guilty of the crime for which he was prosecuted" (Wheeler v. Nesbitt, 24 How. 544; Brewer v. Jacobs, 22 F. 217; Rose v. Innis, 85 Am.Dec. 373); and it is on the existence of such belief, based upon such facts and circumstances, that the question of probable cause rests; not on the fact that the accused is actually guilty (Carl v. Ayers, 53 N.Y. 14, and other cases cited in note 2, p. 26, 14 Am. & Eng. Enc. Law). "Reasonable" and "probable" cause mean the same. Stacey v. Emery, 97 U.S. 642. So that in cases of this character, where there is an absence of facts and circumstances which would lead a reasonable mind to the conclusion of guilt, malice may be inferred on the part of one who prosecutes him. On the other hand, the existence of probable cause does not depend on the fact that the accused was actually guilty.

2. If the circumstances show that there was no reasonable ground for the prosecution, then it would follow that, so far as the circumstances were concerned, the want of probable cause existed. But, notwithstanding this fact, if the prosecutor really acted in good faith, and believed, although mistakenly, that the accused was really guilty, he is at liberty to go further, and show his good faith by facts and circumstances, because the prosecution must be maliciously carried on, and without probable cause, and want of probable cause existed "when the circumstances are such as to satisfy a reasonable man that the prosecutor had no ground for proceeding but his desire to injure the accused." Civ. Code, § 3844. It is perfectly consistent that one who really had no desire to injure should believe honestly that certain facts known to him established the guilt of another. If he did so in good faith, and had reasons for such faith there might exist probable cause, although, in fact, the circumstances did not fix guilt on the accused. In all such cases, however, the jury shall determine the existence or want of probable cause. One of the circumstances which may be submitted to show this cause is that the prosecutor conferred with and acted on the advice of counsel in instituting the prosecution. The general rule, as stated by Mr. Newell (see his work on Malicious Prosecution, p. 310), is, where a party has communicated to his counsel all the facts bearing on the case of which he has knowledge, or could ascertain by reasonable diligence and inquiry, and has acted upon the advice received honestly and in good faith, the absence of malice is established, the want of probable cause is negatived, and the action for malicious prosecution will not lie; and this rule is supported by decisions from the states of Ohio, Missouri, New Hampshire, Pennsylvania, Illinois, Massachusetts, Mississippi, Alabama, California, Virginia, Maryland, Louisiana, Rhode Island, and North Carolina. It seems to me to be founded upon reason and logic. It must be remembered that the law does not favor actions to recover damages for malicious prosecutions. It was at one time doubted whether the action would lie, unless in a case of conspiracy. Lord Holt said that such actions ought not to be favored, but managed with great caution. Their tendency is to discourage prosecutions for crime, as they expose prosecutors to civil suits; and the love of justice may not always be strong enough to induce individuals to commence prosecutions when, if they fail, they may be subjected to the expenses of litigation, if they be not mulcted in damages. Newell, Mal. Pros. p. 21, §§ 13, 14. While the courts should not discourage actions for malicious prosecutions by establishing harsh rules of evidence, or by the rigid principles of law, by force of which a party may be deprived of an important remedy for a real injury, at the same time all proper guard and protection should be thrown around those who, in obedience to the mandates of duty,...