Missouri, K. & T. Ry. Co. of Texas v. Groseclose

• Decision Date: 30 April 1908
• Parties: MISSOURI, K. & T. RY. CO. OF TEXAS v. GROSECLOSE.
• Court: Texas Court of Appeals

110 S.W. 477

MISSOURI, K. & T. RY. CO. OF TEXAS v. GROSECLOSE.

Court of Civil Appeals of Texas.

April 30, 1908.

Appeal from District Court, Hunt County; T. D. Montrose, Judge.

Action by W. M. Groseclose against the Missouri, Kansas & Texas Railway Company of Texas. From a judgment for plaintiff, defendant appeals. Reversed, and remanded for new trial.

Coke, Miller & Coke and Jno. T. Craddock, for appellant. B. Q. Evans and C. L. Elder, for appellee.

WILLSON, C. J.

On December 16, 1905, appellee was, and for several months before that time had been, appellant's station agent at Farmersville, in Collin county. As such agent he had in his possession on the day mentioned between $700 and $800 belonging to appellant. The money was kept in a safe in appellant's office in its depot building at Farmersville. Appellee claimed that about 7:20 o'clock on the evening of the date mentioned he was robbed of the money by two men, who, at the point of a pistol, compelled him to take the money from the safe and deliver same to them. Afterwards, to wit, on December 19, 1905, on a complaint made by one C. T. Warden, who seems at the time to have been a "deputy constable of precinct No. 1, Collin county," charging appellee with having embezzled the money, the latter was arrested. Waiving an examining trial, his bond was fixed at $750, and, having furnished the bond required, on the day after he was arrested appellee was released from the custody of the officers having him in charge. The grand jury after an investigation having failed to indict him, appellee brought suit against appellant and J. F. Penn and F. M. Warden, employés of appellant, alleging that the prosecution against him was a malicious one, instigated by them, and that as a result thereof he had suffered the injuries, on account of which he sought a recovery of damages. The suit as to Penn and F. M. Warden afterwards was dismissed. A trial, had on the issues between appellant and appellee, resulted in a verdict and judgment in favor of the latter against the former for the sum of $4,500. This appeal is prosecuted from that judgment.

After instructing the jury to find for appellee if they believed from the evidence that Penn and F. M. Warden, with malice and without probable cause for so doing, and acting within the scope of their authority as appellant's agents, caused or procured the prosecution against appellee, the court further instructed the jury also to find for appellee if they believed that the assistant county attorney advised or caused the prosecution, yet also believed that he was induced to do so by the failure of appellant's agents, Penn and F. M. Warden, acting within the scope of their authority as such, "to lay before him a fair statement of all the facts known to them, or that could have been known to them by reasonable inquiry," and further believed that the prosecution was instituted without probable cause and with malice. The correctness of that portion of the instructions which authorized a finding against it, notwithstanding its agents may have made to the assistant county attorney a fair statement of all facts known to them, if the jury believed that such statement did not include all facts that could have been known to them by reasonable inquiry, is challenged by appellant's first assignment of error.

Where the advice of counsel chosen by the defendant is relied upon as a defense against an action for malicious prosecution, it is held, in some jurisdictions, that it must be shown, not only that a full disclosure of all the material facts known to the defendant was made to the counsel, but that it also must be shown that other material facts could not have been discovered and disclosed by reasonable diligence in making inquiry. Mfg. Co. v. Hoeher, 106 Ky. 692, 51 S. W. 195; Wicker v. Hotchkiss, 62 Ill. 107, 14 Am. Rep. 77; 1 A. & E. Enc. Law (2d Ed.) p. 902, and authorities there cited. In other jurisdictions it is held that where the facts known to the defendant are disclosed, it is not necessary to make complete the defense that diligence in making inquiry should be shown. Holliday v. Holliday (Cal.) 53 Pac. 43; Ross v. Hixon, 26 Am. St. Rep. 147, notes; 19 A. & E. Enc. Law (2d Ed.) p. 688, and authorities there cited. Without reference to whether the disclosure to counsel was of all that the defendant knew, or as well of all he might have known by reasonable diligence in making inquiry, we think it may be said that in this state the rule is that advice of private counsel is not a complete defense, but a fact to be considered by the jury on the issue of malice and probable cause. Ramsey v. Arrott, 64 Tex. 324; Glasgow v. Owens, 69 Tex. 170, 6 S. W. 527; Shannon v. Jones, 76 Tex. 148, 13 S. W. 477. In other words, it cannot be said, as matter of law, that in this state advice of private counsel first obtained constitutes probable cause for the prosecution. But where the prosecution is upon the advice of the prosecuting officer of the state, the rule seems to be otherwise.

The question was squarely presented in Sebastian v. Cheney, 86 Tex. 502, 25 S. W. 692, and we understand the Supreme Court there to have held that the citizen cannot be held responsible in damages to the injured person, if he in good faith had fairly and honestly disclosed, to the prosecuting attorney, all of the facts known to him, because the officer in advising him may have made a mistake in determining whether or not the statement showed the existence of probable cause for the prosecution. In that case the court asks: "If the lawyer of the state makes a mistake, is the citizen to be held to answer for it?" and then adds: "We have carefully examined the authorities upon this question, and find quite a conflict as to the effect that advice of private counsel shall have in defense of such actions. Some states hold with ours, and others hold that advice of any lawyer of good standing, whether state's counsel or not, when honestly sought and a fair statement of the facts is made, shall be an absolute defense. We have found no case where it is held that a citizen, who in good faith makes a fair statement of the facts as known to him to the prosecuting officer, will be held responsible in damages for the prosecution inaugurated by such officer. The contrary doctrine is established by courts of eminent ability." In Johnson v. Miller, 69 Iowa, 575, 29 N. W. 750, 58 Am. Rep. 231, the Supreme Court of Iowa, with reference to the rule that advice of counsel honestly obtained is a complete defense, said: "But there are more cogent reasons for applying it where the communication is made to the public prosecutor. In criminal cases that officer is the representative of the state. He is required, not only to prosecute indictments which are found, but it is his duty to assist in the investigation of charges against individuals which are brought to the attention of the grand jury. He is by law made the legal adviser of the grand jury. When complaint is made to him that a public offense has been committed, it is his duty to investigate the charge, and, if he deem it a matter of sufficient importance, to demand the attention of the grand jury. It is also his duty to have witnesses subpœnaed and brought before that body, and he has the right to appear also, and assist in their examination. Neither he nor the grand jury are confined to the witnesses named by the complainant, but they have the power to send for and examine any witness whom they have reason to believe can give any material evidence bearing on the question of the guilt of the accused. * * * It would, however, be a very harsh rule, and one calculated to discourage entirely the making of complaints by private individuals, to hold that one who has acted on the advice of the district attorney, given upon a full and fair statement of the material facts which he knew, or which he had reasonable ground to believe existed at the time, was not protected by the advice of the attorney, simply because he did not, before making the complaint, learn of other material facts, of the existence of which he might have learned by reasonable inquiry."

Quoting the foregoing portion of the opinion of the Iowa court, our Supreme Court in the Sebastian-Cheney Case said: "All that is here said, and more, may be said of the case at bar. The laws of this state empower the county attorney to hear complaints and to determine whether or not the facts stated constitute an offense, and also make it his duty, in the event that he decides that an offense against the law has been committed, to take charge of the case and prosecute in the name of the state. It is to be presumed that the county attorney would not be influenced by any private spite or interest of the complainant, and that no citizen would be prosecuted by the public prosecutor except upon what the officer believed to be reasonable ground for such proceeding. It is therefore evident that if the state has selected a proper officer to represent it, no malice of the informant can...