Van Meter v. Bass

• Decision Date: 06 May 1907
• Citation: 40 Colo. 78,90 P. 637
• Parties: VAN METER et al. v. BASS.
• Court: Colorado Supreme Court

90 P. 637

40 Colo. 78

VAN METER et al. v. BASS.

Supreme Court of Colorado

May 6, 1907

Appeal from District Court, City and County of Denver; John I Mullins, Judge.

Action by John T. Bass against S.D. Van Meter and others. From a judgment for plaintiff, defendants appeal. Reversed and remanded.

N.C. Miller, Atty. Gen., I. B. Melville, Asst Atty. Gen., and H. E. Kelly, for appellants.

C. H Burton and John A. Rush, for appellee.

BAILEY J.

Section 11 of the Session Laws of 1881, p. 188, provides: 'Any person shall be regarded as practicing medicine within the meaning of this section who shall profess publicly to be a physician and prescriber for the sick, or shall attach to his name the title 'M. D.' or 'Surgeon' or 'Doctor' in a medical sense.' Section 12 of the same act makes it a misdemeanor for any person to practice medicine who does not have a certificate from the state board of medical examiners entitling him to practice. John T. Bass the appellee, was an osteopath, practicing his profession in the city of Denver. In the front window of his office he had a sign bearing the following words: 'Dr. J. T. Bass, Limited to Osteopathy.' His professional cards bore the same inscription. Appellants constituted the state board of medical examiners. They believed that those practicing osteopathy were practicing medicine within the meaning of the statute. They instructed appellant Van Meter, who was secretary of the board, to consult with the district attorney, and ascertain if those practicing osteopathy were violating the statute, and, if so, to file informations against them. Pursuant to such instructions, appellant Van Meter made some investigations, and learned that appellee was assuming to diagnose diseases and to treat the same by a system of massages and manipulation of the muscles of the body without the use of drugs or surgical instruments. He discovered that appellee was using the sign and the professional cards above mentioned. He advised with a number of reputable attorneys in the city of Denver, among whom were Judge Sales, Marcus Haines, the district attorney, and Mr. McIntyre, deputy district attorney. These gentlemen all stood very high in the legal profession. They were known to be able and conscientious lawyers. They advised him that the appellee was violating the statute, and Mr. McIntyre prepared the necessary papers for the prosecution of appellee. The information was sworn to by appellant Van Meter. The matter coming on to be heard before the district court, a motion to quash the information because it failed to state facts sufficient to constitute a crime was made and sustained; the court holding that the practice of osteopathy did not constitute an offense against the laws of the state. Appellee then brought this action against appellants for malicious prosecution and obtained a judgment in the court below, from which judgment appellants perfected this appeal.

There is no question but that the appellant Van Meter fairly, fully, frankly, and honestly stated the facts to the district attorney as they were set forth in the information. The defendant in the criminal action was not discharged because the facts were not proven, but because the facts alleged did not, in the judgment of the trial court, constitute a crime. At the close of the testimony appellants moved the court to direct the jury to return a verdict in their favor for two reasons: First, that the testimony failed to show the want of probable cause upon the part of the defendants in instituting the criminal proceeding; and, second, that the evidence failed to show that the proceeding was instituted maliciously, and that defendants acted upon the advice given them by the deputy district attorney after a full and fair disclosure of all the facts within their knowledge. This motion was overruled, and the action of the court in so ruling was assigned as error and is the only assignment of error that we will discuss, because it is decisive of the case.

Each of the parties appear to be desirous that we place a construction upon the statute involved. Inasmuch, however, as that statute was amended by the Legislature in 1905, (chapter 135, p. 349, Sess. Laws 1905), we do not see that a construction of the old law by this court would serve any useful purpose. In order to justify an action for malicious prosecution, it must be shown, not only that there was a lack of probable cause for the prosecution, but that it was instigated maliciously. Brown v. Willoughby, 5 Colo. 1; Murphy v. Hobbs, 7 Colo. 541, 5 P. 119, 49 Am.Rep. 366; Gurley v. Tomkins, 17 Colo. 437, 30 P. 344. In Whitehead v Jessup, 2 Colo.App. 76, 29 P. 916, it was held that wherever in criminal prosecutions the plaintiff acts under the advice of counsel, used in good faith and obtained after a full, and fair statement of all the facts bearing on the guilt or innocence of the defendant which he knew or by reasonable diligence might have obtained, he has a good defense to an action for malicious prosecution. In Florence Oil & R. Co. v. Huff, 14 Colo.App. 287, 59 P. 624, it was said: 'The cases where the opinion of counsel, given upon a full and candid statement of the facts, may be shown as a defense to an action for malicious prosecution, are those in which the facts disclosed did not constitute probable cause for the prosecution, and the advice that they did was erroneous. Acting in good faith upon the mistaken opinion of counsel will not subject the prosecutor to liability to the person prosecuted. The advice will shield him from...