William M. Ross & Co. v. Innis

• Decision Date: 30 April 1864
• Citation: 35 Ill. 487,85 Am.Dec. 373,1864 WL 3081
• Court: Illinois Supreme Court
• Parties: WILLIAM M. ROSS & Co.v.ADAM G. INNIS.

35 Ill. 487

1864 WL 3081 (Ill.)

85 Am.Dec. 373

WILLIAM M. ROSS & Co.

v.ADAM G. INNIS.

Supreme Court of Illinois.

April Term, 1864.

APPEAL from Superior Court of Chicago.

The case is sufficiently stated in the opinion.

Walker & Dexter and John J. McKinnon, for appellants.Hervey, Anthony & Galt and B. S. Morris, for appellee.

BREESE, J.

This was an action on the case for malicious prosecution brought in the superior court of the city of Chicago by A. G. Innis against William M. and John H. Ross, composing the mercantile firm of Wm. M. Ross & Co., doing business in that city. The case has been three times tried by juries, and three verdicts obtained by the plaintiff with heavy damages. The first verdict was set aside by the court in which it was rendered, the judgment on the second was reversed by this court and the cause remanded.¹ The result of the remand was another trial and a verdict for plaintiff for ten thousand dollars and judgment thereon. This judgment is brought here by appeal on bill of exceptions, and a reversal prayed on various grounds.

The charge on which the plaintiff was arrested was embezzlement--that, while a clerk in employment of the defendants, it was his duty to receive, safely keep and disburse the moneys of the firm. That during the continuance of his employment, he was intrusted with the sum of one hundred and sixty-six dollars by the firm, which, without the knowledge or consent of the firm, and against their will, he feloniously converted and appropriated to his own use, and embezzled from the firm with the intent to steal the same. He was examined on the charge and acquitted.

The question for determination in the several trials had was, as to the criminal intent of the plaintiff in taking the money. That he took the money and appropriated it to his own use, the plaintiff never at any time denied, he claiming the right to take it, as the balance of his salary as cashier, due him from the firm.

The defendants insist, and have always insisted, that there was probable cause for the arrest, and further, before they proceeded to take any steps towards plaintiff's arrest, they obtained the advice of eminent counsel, and acted upon that.

If either of these grounds exists and was proved, the verdict was wrong and should have been set aside. If they do not exist, then another question will have to be considered, and that is, the amount of the damages.

These grounds of defense will be examined. Probable cause is defined by this court to be a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the person accused is guilty of the offense charged. Richey v. McBean, 17 Ill., 65; Jacks v. Stimpson, 13 Id., 701; Hurd v. Shaw, 20 Id., 356. If probable cause for the arrest exists, malice on the part of the prosecutor cannot be considered--it weighs nothing. The onus is upon the party bringing the action to show that the criminal prosecution was the offspring of malice and without any probable cause to justify it--that the prosecutor had no sufficient reason to believe the accused guilty. The want of this element, probable cause, is the main ground of this action, and it must be clearly shown; and though malice may be inferred from the want of probable cause, a want of probable cause cannot be inferred from malice. The burden is on the plaintiff to show affirmatively, by circumstances or otherwise, that the defendant had no ground for the prosecution--no such reasonable ground of suspicion sufficiently strong in itself to warrant a cautious man in believing that the person arrested is guilty of the offense charged. In addition to the cases above cited, reference is made to the case of Israel v. Brooks, 23 Id., 576, on this point.

In the last cited case the court said, what those circumstances may be, cannot be specified, but we would think among them the good character of the party accused would stand out prominently. That is a strong fact if known to the accuser, to ward off suspicion, to weaken a belief, he being a prudent and cautious man, in the guilt of the suspected party.

A glance at the leading facts must satisfy any one that no probable cause existed for the arrest.

The plaintiff had been in the employment of the defendants more than four years, and had an established character for honesty. During that time the daily receips of the concern averaged fifteen hundred dollars, not one dime of which was unaccounted for by the plaintiff. A charge was made against him of a debt due from his brother, which the defendants claimed was to be paid by the plaintiff, and which they sought to set up against his salary. Denying the agreement, or any understanding that his brother's debt was to be charged against his salary, but insisting that it was to come out of certain insurance money, he, on leaving the establishment, appropriated to the payment of salary due the sum of one hundred and sixty-six dollars out of moneys of the firm in his hands. This was known to the defendants, and known too, that he claimed the right to do so. He was not bound by the rule of the house, that sums over five dollars should be paid out on checks only drawn either by Wm. M. Ross, or by the plaintiff indorsed by other partners, as he was not a clerk in the meaning of that rule. Nor was that rule always observed, for repeated instances are shown in which it was departed from even as to the clerks. The defendants knew perfectly well, when they caused the plaintiff to be arrested for embezzlement, that he took the money as his legal right, for the balance of his salary, and that he denied the right of defendants to pay his brother's debt out of his salary; and made the proper entry in the book against himself, and pointed it out to John H. Ross at the time, insisting all the while on his right to take the payment of his salary. An embezzling thief would not so act. There is not one circumstance shown in the case on this point, tending to make out probable cause, but everything to dissipate such a notion.

On the other point that the defendants acted under the advice of counsel, that defense can never avail unless there has been a full statement of all the facts to the advising counsel, all the facts of which the party is in possession, or which by reasonable diligence he could have ascertained. Ash et al v. Marlow, 20 Ohio, 119. In Stevens v. Fassett, 27 Maine, 266, it was held if a person with an honest wish to ascertain whether certain facts will authorize a criminal prosecution, lays all the facts before one learned in law, and asks his deliberate opinion thereon, and the advice obtained is favorable to the prosecution, it will go far in the absence of other facts to show probable cause, and to negative malice in the action for malicious prosecution; but if it appears that the party withheld material facts within his knowledge, or which in the exercise of common prudence he might have known, the opinion which he invokes in his defense cannot avail him. To the same effect are the cases of Bliss v. Wyman et al., 7 Cal., 267, and Kendrick v. Cyssert, 10 Humph., 291. Many other cases might be cited on the point, but it is unnecessary, as the bare statement of the principle proves its correctness. That the defendants withheld from their counsel several important facts is fully proved.

In the first place they sought to impress upon Mr. Blackwell that the plaintiff was an ordinary clerk, and subject to certain rules of the establishment, governing the clerks in obtaining money; that the plaintiff had violated those rules in such a way as to make him chargeable with the crime of embezzlement. The fact was, and must have been known to the defendants, that the plaintiff was not in that category at all, that his name never was on the pay roll of the clerks, and was not, and had not been subject to the rules as to his pay which governed the clerks as to their pay. By this their counsel was misled. The plaintiff's true position was very important to be known by Mr. Blackwell, and if stated to him as it really was, it is not probable this sagacious lawyer would have seen any indication of embezzlement in the act done. Mr. Blackwell's idea undoubtedly was that plaintiff was but a clerk and subject to the rules as to payment governing them.

Again, the defendants did not tell...