El Reno Gas & Elec. Co. v. Spurgeon
| Citation | 118 P. 397,30 Okla. 88,1911 OK 334 |
| Parties | EL RENO GAS & ELECTRIC CO. v. SPURGEON. |
| Decision Date | 10 October 1911 |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
In an action for malicious prosecution growing out of a criminal prosecution of the plaintiff where the prosecutor, before instituting the criminal proceedings, obtained the advice of the county attorney, and then and there communicated to him all the facts bearing on the case of which he had knowledge or could have obtained by reasonable diligence and inquiry and acted upon the advice given honestly and in good faith the absence of malice is established, the want of probable cause negatived, and an action for malicious prosecution will not lie.
In an action for malicious prosecution, where the undisputed evidence shows that the prosecutor sought the advice of competent counsel, and made a full disclosure of all the facts reasonably obtainable, and in good faith acted upon such advice, probable cause for the institution of the criminal prosecution is established, notwithstanding the subsequent acquittal of the accused.
In an action for malicious prosecution, the burden of proof is upon the plaintiff to prove want of probable cause, and where the uncontroverted evidence shows that the prosecutor laid all the facts before competent counsel, and acted in good faith upon the advice given, he is exonerated from all liability.
In an action for malicious prosecution, where the uncontroverted evidence shows that the prosecutor, before instituting criminal proceedings against the accused, sought the advice of a regularly licensed and practicing attorney, and thereafter, and before action was taken, also consulted and advised with the county attorney, and placed before said attorneys all the facts within his knowledge, or which he could have obtained by the exercise of reasonable diligence and inquiry, concerning the guilt of the accused, and fairly and honestly acted upon the legal advice given, it is error in the trial court to refuse to direct the jury to return a verdict for the defendant.
Commissioners' Opinion. Division No. 1. Error from District Court, Canadian County; W. N. Maben, Judge.
Action by C. C. Spurgeon against the El Reno Gas & Electric Company. Judgment for plaintiff, and defendant brings error. Reversed and remanded.
Babcock & Trevathan and W. H. Criley, for plaintiff in error.
George S. Pearl, for defendant in error.
SHARP C. (after stating the facts as above).
The motion to direct a verdict in its favor, filed by plaintiff in error, omitting formal parts, is as follows: This motion was overruled, to which action plaintiff in error excepted, and here urges as reversible error.
If, from the uncontroverted testimony in the case at bar, it is made to appear that Stephens, as manager of plaintiff in error, sought the advice of counsel, and put before him a full and fair disclosure of all the facts he had with reasonable diligence been able to gather concerning the guilt of the accused, and then and there received advice justifying the prosecution and relied thereon, and in good faith made the criminal complaint, believing the accused guilty, plaintiff in error is entitled to immunity from damages, notwithstanding the subsequent acquittal of the accused. Such a course of conduct completely rebuts the allegations that there was a want of probable cause for commencing the prosecution, and of itself shows probable cause. It is necessary to consider what the testimony is in this regard.
H. H. Stephens testified in substance that, after being apprised of the facts concerning the alleged offense, he consulted Attorney Babcock, stating the facts concerning the alleged offense to him, and asked his advice, and that Mr. Babcock advised him that he thought a cause of action existed, but to see the county attorney and lay the facts before him; that he then saw the county attorney, showing the appliances that had been taken out of the main-line plug, and the connections that had been made to complete the circuit in the house of defendant in error, and told him what he had seen and what two of the company's employés had seen and reported to him, and asked him whether he thought the company had a cause of action or not, and was advised that the county attorney thought he had, and that a complaint was then made out and sworn to.
John W. Clark, county attorney, testified that on February 12, 1908, and prior to the commencement of the criminal action against Mr. Spurgeon, what purported to be a statement of facts was given him. The witness' recollection was that Mr. Babcock first came to him and stated the circumstances, and that they talked the matter over, and that he requested Babcock to look up the law, and that Mr. Babcock, in turn, informed him that he had looked up the law whether or not electricity was the subject of larceny; that they then went to the office of the county judge and looked up a decision, and that Mr. Stephens came to the office at some time and signed the information, and that possibly Mr. Stephens stated the facts to him, and the witness' recollection was that substantially the facts presented at the time were sworn to by the witnesses for the state in the trial of the criminal action; that the opinion of the witness, if given or expressed, was shown by the information, and that, if a further opinion was given, it was that the facts, if proven, constituted a cause of action; that the case had been twice tried; that it was the universal custom of the county attorney's office, upon complaint made, to make out a complaint, unless, in the belief of the witness, it was being done from malice or spite; that the witness had a conference with Messrs. Babcock and Stephens; that there was some doubt in the mind of the witness whether a prosecution would lie for stealing electric current; that after the first jury had disagreed the witness considered that, from the facts presented at the trial, there was sufficient evidence to warrant its being again submitted to a jury, and that, prior to the filing of the complaint, the coils, or fuse plugs, or something similar, and some short pieces of wire, were shown the witness; that Mr. Babcock assisted the witness in the prosecution, but not at the solicitation of the witness, but presumably as attorney for the El Reno Gas & Electric Company.
Lucius Babcock testified that he had resided in El Reno for about eight years, and was a regular practicing attorney of about ten years' experience, and that about February 1st he was consulted by H. H. Stephens with reference to preferring a criminal charge against C. C. Spurgeon; that Mr. Stephens informed him concerning the use by Spurgeon of electricity, by making certain connections, without the company's consent, and without paying for it; that he then looked up the question of whether or not electricity was the subject of larceny; that the statements made by Mr. Stephens consisted of what he himself had observed, and of what had been reported to him by Mr. Bowers; that he advised Mr. Stephens that he had probable cause for commencing the action against Spurgeon, but advised him to lay the matter before the county attorney, and he would do the same; that he went to see Mr. Clark, and found Mr. Stephens already there, and that they presented to Mr. Clark the same matter just as Mr. Stephens had stated it to him prior to that time, and showed Mr. Clark the connections and improvised coils and wires which Stephens had shown the witness; that thereupon Mr. Clark suggested there might be a question as to whether or not electricity was the subject of larceny, and asked the witness if he had looked the matter up, and that he told the county attorney that he had, and they then went to the office of the county judge and looked up an authority, after which Mr. Clark stated he was satisfied, and subsequently drew up the information, and that Mr. Stephens afterwards came came back and signed it, when it was filed; that the evidence and facts submitted to the witness by Mr. Stephens and sworn to in the complaint were substantially the same facts and circumstances as were produced on the first trial, but that on the second there was slight additional testimony, though what this was does not appear from the record; that while there was no statute referring directly to the larceny of electricity, the witness advised Mr. Stephens that such larceny came properly under the general larceny statute; that Mr. Clark told Mr. Stephens and the witness that under the statement of facts, and in his opinion, an offense had been committed against the state; that the only doubt that Mr. Clark expressed about the propriety of the prosecution was as to a question of law, and not of evidence.
It may be stated as a general rule that, where a party has communicated to his counsel all the facts bearing on the case of which he has...
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