Smith v. Walter

• Decision Date: 15 April 1889
• Docket Number: 126
• Citation: 17 A. 466,125 Pa. 453
• Parties: AARON SMITH v. ROBERT WALTER
• Court: Pennsylvania Supreme Court

17 A. 466

125 Pa. 453

AARON SMITH v. ROBERT WALTER

No. 126

Supreme Court of Pennsylvania

April 15, 1889

Argued March 5, 1889

ERROR TO THE COURT OF COMMON PLEAS OF BERKS COUNTY.

No. 126 July Term 1888, Sup. Ct.; court below, No. 46 June Term 1885 C.P.

On May 20, 1885, Dr. Aaron Smith issued a summons in trespass on the case for malicious prosecution against Dr. Robert Walter. The plea was not guilty.

At the trial on May 16, 1888, the following facts appeared:

Dr Smith owned and conducted a sanitarium in Berks county, for some years prior to 1874, and then leased it to Dr. Walter. At the expiration of the lease, Smith refused to renew it and Walter put up buildings for himself in the neighborhood, and conducted a rival establishment. On October 22, 1884, Smith made a complaint before an alderman that Walter was illegally carrying on the practice of medicine, contrary to the act of assembly in such case made and provided. On the same day Walter made complaint before the justice, that Smith, in making the complaint aforesaid, had committed wilful and corrupt perjury, and had a warrant issued upon which Smith was bound over to the Court of Quarter Sessions. The grand jury subsequently ignored the bill of indictment which was brought before them against Smith, and he thereupon brought this suit.

The defence was, that prior to issuing the warrant against the plaintiff, the defendant went to Mr. Cyrus G. Derr, a member of the Berks county bar in good standing, and that after having in good faith laid his case fully before him, Mr. Derr advised him to prosecute the plaintiff.

Upon this subject the plaintiff testified as follows:

Q. He (Smith) arrested you for practicing medicine illegally, did he not? A. Yes, sir.

Q. After that, what did you do? After he had first sued you then arrested you, what did you then do? A. I went to my lawyer and stated the case to him, and got his advice.

Q. Who was the lawyer? A. Cyrus G. Derr.

Q. That was before you brought the prosecution for perjury? A. Yes sir.

Q. What did you say to Mr. Derr? A. I called Mr. Derr's attention to the fact that Dr. Smith had had me arrested; that I had been just served with a summons, which considerably disturbed me, and I said I thought his intention was to discredit me before the people and injure me in that way, and I asked him what I should do under the circumstances.

Q. Did you state to Mr. Derr the facts as to the charge against you, as to practicing medicine illegally? A. Yes, sir.

Q. Just state what facts you told him? What did you tell Mr. Derr and what did he say to you? A. After stating to Mr. Derr that I had been arrested for practicing medicine illegally, Mr. Derr asked me if there was any reason why I should be, if it was true that I was practicing medicine illegally, and if there was any reason for the arrest. I told him it was not true that I was practicing medicine illegally, I believed; that I had seen the law and was satisfied myself that I was engaged in a lawful business, perfectly so.

Q. Did you tell him what you were doing? A. I told him what I was doing.

Q. What did you tell him you were doing? A. I told him I had a health institution upon the mountain side, and that I was receiving people who came there to rest, and that I was treating them by hygienic methods, regulating them with hygienic methods; that my institution was a hygienic institution and known as such, and that as such I was conducting it; if there was any medical practice ever conducted in my institution that I had legally qualified physicians in my employ. He asked me upon what grounds did I suppose Dr. Smith had me arrested, and I told him the only thing that I could think of that would leave a ground for this was the fact that the college from which I graduated was in New Jersey at the time I graduated, while it was chartered by the laws of the state of New York. Well, he says, you are not practicing medicine at all, illegally or not, and there is no reason why you should be indicted for practicing medicine illegally, and he says: "I would have him arrested for perjury, and I would have him arrested promptly, and let your answer go out with the charge."

Q. What did you do? A. We consulted about it. I came down in the 6 o'clock train, and Mr. Derr came to his office about 7 o'clock, and we consulted and talked about it, and he wrote out the information until 9 o'clock in the evening. We consulted about it, and it got along, well, about 9 o'clock, and we went over to Alderman Brownwell's. I think Alderman Brownwell came to Mr. Derr's office, I am not certain -- I believe I went over to Mr. Brownwell's office, and signed the information. The information was written out, and we made the information. Mr. Derr wrote it out. I do not know what he wrote; he had a book from which he quoted there, a legal form, and he wrote out what he thought was right; and after the alderman had taken my affidavit, and made out the warrant, he gave it to me, and he says, "You had better give that to the constable now." I think I had however got the constable -- no, I believe I went then to find the constable to serve it. The reason why we served it that evening particularly is that we had been told that Dr. Smith was going out of town, and if we did not serve it that evening we would not get a chance to. So we sent up the constable that evening to serve the warrant, and the constable reported that Dr. Smith was out of town, and that he had left word at the house for him to come down and enter bail.

Q. That was the day you were arrested? A. That was the same day I was arrested.

Q. You came down to enter bail at six o'clock? A. I entered bail.

Q. When were you arrested? A. I was arrested about between 3 and 4 o'clock in the afternoon of that same day.

Q. When did you enter bail? A. I could not be certain. I came down immediately and consulted my lawyer, but whether I entered bail that evening or not I am not certain.

Mr. Derr testified as follows:

Q. Then he consulted you about this prosecution before it was brought? A. He did.

Q. State to the court and jury how it was brought? A. On a certain evening -- I cannot recollect the date, but it is the date named in the information -- I presume the information is in evidence -- it is on the same day.

Q. October 22, 1884? A. I could not say anything beyond what appears in the information. In the evening, may be half-past seven o'clock, or thereabouts, Dr. Walter called at my office and called my attention to a prosecution or an information which had been made against him by Dr. Smith. I cannot recollect the date of that, but I presume that that is in evidence, too. After a conference, in which the facts were stated to me -- certain facts were stated to me -- I gave the Doctor, as my opinion, as a lawyer, that he would be justified in prosecuting Dr. Smith for perjury, and in doing so promptly; and acting under my advice, he made the information. I dictated the information and my clerk drew it up, and he went away with it to the alderman's office.

Q. Do you recollect the facts that Dr. Walter stated? A. I think I could recall the leading facts. I would not undertake to give the entire conversation; and some of the facts I already knew, having been the Doctor's counsel, and having observed a controversy between him and Dr. Smith, I was already possessed of some of the facts. But in the first place, the Doctor told me his method, gave me an idea of his system, of what he was doing at his institution, and he told me, among other things, that he did not administer drugs. After having fully stated to me what he did, I told him it was my opinion that he was not practicing medicine within the intent and meaning of the act of assembly. He also told me he had a diploma from a college the name of which I forget. He told me the college had been chartered by the legislature of the state of New York. I think he said by the legislature. It had been chartered in New York, and at the time that he was graduated at that college it was located in the state of New Jersey. Now, upon those facts, I gave it as my opinion first that he was not practicing medicine, or, if what he was doing should be adjudged practicing medicine, that he was not doing so unlawfully.

Cross-examined:

Q. Those were all the facts he stated to you? A. No, I would not like to say that; indeed, I should not think they were nearly all he stated to me. In addition to that, I might say, that it was manifest to me that what Dr. Smith had sworn to in his information was not true; and the next question I wanted to determine before giving an opinion was as to whether he had knowingly, or at least wantonly, sworn to what appeared to me as not being true. Dr. Smith had known Dr. Walter a good many years and had known his system, known his method, and, therefore, I concluded that Dr. Smith knew that Dr. Walter was not administering drugs; and I also understood from Dr. Walter that he was a graduate from the same college when it was still located in New York. Therefore I concluded that Dr. Smith knew that Dr. Walter had a diploma, and knew that in his practice he was not administering drugs. Now the next thing to determine was, as to whether he had any motive, and the newspaper article, which was referred to in our conversation -- I do not think we had it there, I remembered having read it -- was one of the elements taken into consideration -- the newspaper article in which Dr. Smith threatened to do Dr. Walter some injury which was not defined. That furnished as I thought the motive. It was indicative of malice, of a purpose to injure Dr. Walter. The article, I believe, wound up with a quotation from Shakespeare.

Q. "Lay on, Macduff"? A. Yes, sir.

Q. What then? A. Upon...