Cooper v. Utterbach

Bowie, J.,

delivered the opinion of the Court.

The exceptions brought up by the appeal in this case, were taken in an action for malicious prosecution, instituted by the appellee, against the appellant, in the Superior Court of Baltimore City.

The general issue was entered, and the parties agreed “that all errors of pleading be waived, and either party be permitted to prosecute or defend, on any evidence in the cause applicable to any state of the pleadings.”

The appellee to maintain the issue on his part, offered in evidence a certified copy of a requisition from the Governor of Maryland, on the Governor of Virginia, accompanied by a record of the indictment and proceedings of the State of Maryland against him, charging him with obtaining money and stock of the appellant by false pretences, and showing his arrest, submission, and trial by the Court; the finding of not guilty, and jüdgment that he be discharged. The indictment, was found *305 at January Term, 1868, of the Criminal Court of Baltimore City, and the finding and judgment thereon rendered at May Term following.

The appellee also offered in evidence, certain proceedings and depositions, from a duly certified transcript of tiie record of an Equity suit, in the Circuit Court of Fauquier County, Virginia, instituted the 7th of February, 1868, by the appellant against the appellee and others, as defendants. The bill in this case charged that the appellant loaned the appellee in July, 1866, eleven thousand dollars, payable in two years, for which be took the appellee’s note for the principal, and four notes for the interest to accrue, and as security for the same, the appellee executed a deed of trust on certain lands in Fauquier County, Fa. The bill further charges, that “ During the pendency of the negotiation of the loan, the appellant was informed there was a prior deed of trust on said land, executed by the appellee, to one Phillips, to secure a debt from the appellee, to his father Arm-stead Utterbach, who was dead, and that letters of administration were granted on his estate, to the appellee. As the value of the land on which Utterbach, (the appellee,) proposed to secure the loan from your orator (the appellant,) was' about equal to the amount of money he desired to borrow, your orator declined advancing any sum upon it until satisfied that it was blear of all incumbrances.”

The bill then charges certain acts and declarations of Utterbach, in his own right, and as administrator of Armstead Utterbach, by which he pretended to extinguish the prior incumbrance, and induced the complainant to believe it was released, and insisted the said acts amounted to a release, and prayed the .lands might be sold to satisfy the appellant’s debt.

The appellee’s answer admitted the execution of the notes mentioned in the bill, but denied the appellant had *306 loaned him $11,000; on the contrary, he averred that the money loaned was $4,980.17, and the balance of the consideration, was 86 shares of Navassa Phosphate stock, fraudulently represented by the appellant to he worth 55 per cent., and which he was induced to take at 70 per cent., making in the whole $6,020, which made up the consideration of the note of $11,000.-

He admits that at the time of the negotiation, his real estate was encumbered by the deed of trust to Phillips, to secure six several bonds to Armstead Utterbach’s estate, only three of which were due, the rest having been discharged, and was also encumbered by several judgments to a large amount, and these encumbrances he was required to remove; that he was advised he had the legal right as administrator, to release the deed of trust, and took the necessary steps to effect a release.

With regard to the judgments, he made an arrangement with his creditors, that their respective amounts should.be deposited in a Baltimore hank, and they were paid-out of the $4,980, aforesaid.

The answer of Charles T. Green, administrator de bonis non of Armstead Utterbach, was filed claiming priority of lien _ under the deed of the appellee to Phillips, etc.

By agreement, commissions were issued to Baltimore, and the depositions of various witnesses in relation to the negotiation of the loan between the ajjpellant and the ' appellee, were taken and returned.

Numerous depositions were also taken by the appellant and the appellee, in the State of Virginia^

Issues were directed by the Court to a jury, to inquire whether fraud or usury was practiced by the appellant on the appellee, which being found for the former, the Circuit Court on the 23d of September, 1871, decreed 'that the' appellant was entitled to subject the real estate conveyed .by the appellee to Robert W. L. Rasin, by his *307 deed of trust, to the satisfaction and discharge of the debt thereby secured.

The appellee having further proved by the State’s Attorney for Baltimore City, that the requisition for the appellee was issued at his instance, upon the application of the appellant, who gave his version of the circumstances of the offence, thought himself aggrieved, and that the law had been violated; and was eager to have the appellee brought to justice, further proved by the same witness, that at the criminal trial, facts favorable to the prisoner were brought out in the testimony for the defence, and possibly on the cross-examination of the Htate’s witnesses, (though of this last he had no recollection,) which facts had not been previously known to witness. “Cooper and Bidgely told witness that the plaintiff had not relieved the lien, and had not given defendant an unincumbered title. This was when they saw witness before the issuing the requisition.”

The plaintiff, (the appellee,) having rested,- the appellant read certain depositions and proceedings from the Chancery Record, (“which was read on both sides, at the pleasure of counsel, without objection,” says the bill of exceptions,) and proved by Col. John S. Mosby, that he was a member of the bar of Fauquier County, Va., and employed by the appellant, to enforce his rights under the deed of trust to Rasin, set forth in the Chancery Record. After detailing his connection with the case, and proceedings in prosecuting it, Col. Mosby said, “he examined and ascertained all the facts connected with the case in Virginia for himself, and from them, and James M. Rasin’s statement of the facts of the original transaction between plaintiff and defendant, witness came to the conclusion that the plaintiff', (the appellee,) had obtained the appellant’s money and stock, under false and fraudulent pretences.

“The defendant did not, nor did Jas. M. Basin consult witness on this point, but only employed him to enforce *308 defendant’s lien, and witness himself, of his own accord, volunteered to say to Rasin, and he thinks he wrote to defendant, that in his opinion, plaintiff had laid himself open to a criminal prosecution for false pretences.”

The witness further testified, that “to the best of his recollection, he filed the bill in the Chancery case, a short time before the March rule day of the Fauquier Circuit Court; which rule day was the first Monday in March. The next day after filing it, (probably towards the close of February, 1868,) witness came to Baltimore, and went to see defendant, to whom he repeated orally the opinion in regard to plaintiff’s criminal liability, which he had expressed to Rasin, and also, he thought to defendant himself, by letter, the November before.”

The witness further stated, “ that the evidence against the plaintiff in the criminal trial did not conflict or differ in any particular with that of the same witnesses, given in the Chancery proceeding here in evidence, upon the matters involved in the criminal case, and that the facts proven by the State on the criminal trial, were substantially the same as those shown by the depositions of the same witnesses in the Chancery Record. Either in chief, on the part of the State, or on cross-examination of the State’s witnesses, all the facts came out on which witness had formed his own opinion as to plaintiff’s guilt, and which appear in the Chancery Record, in the depositions of the same witnesses, without any thing to the contrary.”

On cross-examination, the plaintiff’s counsel then propounded to the witness the following question, stating at the same time, its object was to ascertain whether all the facts had been stated to witness, viz:

“You have.stated that, with all the facts before you, you advised Captain Cooper (the defendant) that Utterbach had been guilty of obtaining money under false pretences ; please state what were the facts upon which that advice was based?”

*309 To which question and the admissibility of the matters enquired of, the defendant objected, for the reason, among others, that the correctness of the opinion of witness was not in issue, nor were the reasons or grounds on which he based it, but only the fact that he had formed and expressed it to the defendant.

The Court overruled the objection, and allowed the question to be asked and the answer to go to the jury, which forms the ground of the first exception.

It is obvious from the nature of the action, which requires proof of want of probable cause, and malice, to sustain it, that the testimony of the witness in his examination-in-chief, (in the particulars which have been quoted,) was given to rebut the presumption of malice, by showing that the defendant, in instituting the prosecution for which he was sued, had proceeded in good faith, upon the advice of counsel learned in the law, given upon a full representation of the facts.

“It has been doubted (says a learned author) whether this defence can be set up where the party omits to state to his' counsel, a fact well known to him, but which he honestly supposed was not material — or omits, through ignorance, to state a material fact which actually existed. And it is well settled, that he must show that he communicated to such counsel, all the facts bearing upon the guilt or innocence of the accused, which he knew, or by reasonable diligence could have ascertained.” 1 Hilliard on Torts, 438; Ash vs. Marlow, 20 Ohio Rep., 119; Bliss vs. Wyman, 7 Cal., 257 ; Potter vs. Seale, 8 Cal., 217 .

The object of the question excepted to, was to test the good faith of the appellant, by ascertaining whether he or his agents had disclosed all the facts hearing upon the guilt or innocence of the accused, in his possession, in his consultation with his legal adviser, and this could only he effected by allowing some such question as that propounded and excepted to.

*310 The theory of the appellant, that the correctness of the opinion, or the reasons or grounds on which he based it, were not in issue, would be correct in a case where all the facts were divulged ; the better opinion being, where such is the case, the prosecution is not liable to an action for a malicious prosecution, even if the facts did not warrant the advice and prosecution. See Walter vs. Sample, 25 Penn. Rep., 275; Hall vs. Suydam, 6 Barb., 83 .

But the advice of counsel cannot protect where there has been a “suppressio veri,” or “suggestio falsi.”

The suggestion, that there was no evidence that Cooper had ever made any communication to Col. Mosby, and therefore the • question could be no test of Cooper’s good faith, in conferring with Mosby, proves too much. If it be true, that Cooper, neither by himself nor agent, made any statement of the facts which came to his knowledge, touching his transactions with the appellee, he could not claim the benefit of Mosby’s advice; for they could only stand in the relation of counsel and client after having consulted either in person or by agent. If he consulted through the medium of a third person, it was as important to know what had been conveyed through that medium, as if communicated in person, since the omission of any important fact, in such consultation through the medium, would be as fatal to the client as if he had failed personally to disclose it.

The question, however, was not confined to facts communicated by Cooper, but was general, and comprehended all means of information.

It may be, as argued by the appellant, that the assumption on which the question was founded, was not literally accurate, yet if was substantially so.

The pith and marrow of Col. Mosby’s evidence was, that after full investigation of the facts in Virginia, for himself, and information of the facts attending the loan in Maryland, from Jas. M, Rasin, defendant’s agent, he *311 had expressed to the defendant the .opinion that the plaintiff was liable to prosecution for obtaining money, etc.-, under false pretences. This was sufficient to warrant the question on cross-examination of the witness by the appellee’s counsel, requiring him to state “what we» the facts on which his advice was based?” as by specifying those, the facts not disclosed, (if any) would negatively appear. For these reasons, we think the ruling of the Court below, on the first exception, was right.

After the testimony was closed, the appellee offered five prayers, to all of which the appellant objected, because they were not only erroneous in point of law, but without any sufficient legal evidence to support them.

The first, second,- fourth and fifth of the appellee’s prayers were granted, and the third rejected.

The appellant offered six prayers, the first and third of which were granted, as submitted; the second and fourth conceded; the fifth granted with modifications, and the sixth refused.

The Court of its own accord, gave an additional instruction explaining the words “probable cause.” To which action of the Court, in granting the prayers of the appellee, refusing and modifying those of the appellant, and granting the additional instruction, “sua sponte,” the appellant excepted, which constitutes his second exception.

Taking up the points in the order presented in the appellant’s brief, the appellant’s sixth prayer will be the next subject of consideration. This prayer virtually proposed to exclude from argument, and the consideration of the jury, all the facts developed in the record of the case of the appellant against the appellee, and others, in the Circuit Court of Fauquier County, on the ground that the questions decided in the case, were to be taken as finally settled and concluded between the parties, and no longer open to controversy; and the Court having *312 determined in that case, that the transaction between the plaintiff' and defendant, out of whicli said controversy and the criminal proceedings arose, and with which the present is connected, was altogether fair on the part of the appellant, and not tainted with fraud, or usury, as the appellee contended, it Avas no longer competent for the plaintiff to argue, or the jury to find otherwise, than as the Court had pronounced it.

“The principle upon which judgments are held conclusive upon the parties, requires that the rule should apply only to that Avhich was directly in issue, and not to everything which was incidentally brought into controversy during the trial.” 1 Greenleaf on Evidence, sec. 528.

The matter directly in issue in the case decided in Fauquier Circuit Court, was the right of the appellant to a lien on certain lands therein, in preference to all other creditors, and to have the said lands sold, Avhich issue was decided in the appellant’s favor, and to that extent, the record was conclusive. In the course of that suit, many collateral matters were introduced, numerous witnesses were examined touching the. conduct and character of the appellee in other transactions.

It was agreed in the cause, as we have seen, that errors in pleading be waived, and either party be permitted to prosecute or defend, on any evidence in the cause applicable to any state of the pleadings.

The depositions and proceedings in the Chancery Record were read, (according to the bill of exceptions,) on both sides at the pleasure of the counsel without objection. The record was not offered, or used by either side, merely to prove the fact of the decree, nor were the depositions used to prove what had been testified to, by any particular witness in the cause, who was since dead or disqualified; but it would seem, the depositions were used by each side, as a substitute for the oral examination of wit *313 nesses, not then before the Court, who had been examined in the Chancery cause on the several matters involved in said cause, which were also the subject of investigation, in the criminal prosecution, and the action for malicious prosecution now under review.

They thus became original testimony, on which the counsel were at liberty to make such comments and the jury to form such conclusions, as the facts warranted, without regard to the final decree in the case.

As the action of the Criminal Court in Baltimore, acquitting the appellee, would not, if offered in evidence in the Chancery cause, pending in Virginia, have established conclusively any other fact, than his acquittal of the charge; so the record and proceedings in Virginia, did not establish any fact but those directly in issue, the right of the complainant therein to his prior lien.

Neither the conduct nor character of the appellant or appellee was directly in issue in the Chancery cause, and matters collaterally involved were mere incidents. “Neither the judgment of a Court of concurrent nor exclusive jurisdiction, is evidence of any matter which came collaterally in question, though within its jurisdiction; nor of any matter incidentally cognizable, nor of any matter to be inferred by argument from the judgment.” 1 Greenleaf on Ev., me. 528; 2 Kent’s Com., 119, 121.

The appellant’s third point is, that the action of the Court below in rejecting the appellee’s third prayer, “ because of the absence of any sufficient evidence in the cause tending to show any design on the part of the defendant to accomplish any private end of his own, by means of the prosecution referred to in the said third prayer” is inconsistent with its action, in granting the appellee’s fifth prayer, by which the jury were authorized to find that said prosecution was pursued by the appellant for his private ends.

*314 It is argued that, if there was no evidence to warrant the hypothesis in the third prayer, there was a like absence of evidence to sustain that hypothesis in the fifth. This is not a case of conflicting instructions like that referred to in 13 Md., 85 ,’by the appellant. In that case, an instruction had been granted at- the instance of the appellant, which was excepted to by the appellee, but not brought up by appeal, and a prayer of the appellant’s rejected which was inconsistent with that previously granted. In reviewing the action of the Court below, this Court said “the Court did right in the rejection of the defendant’s last prayer, in regard to the standard of damages. The Court had previously given an instruction on this subject, in its character much more liberal, than the defendant in law had a right to ask. Inasmuch as that instruction is not before us on this appeal, we decline the examination of the principle contained in it. To have given the instruction embraced in the last exception, would not only have been elearly erroneous, but to give contradictory instructions on the same subject, a procedure wholly inadmissible.” Cumberland Coal & Iron Company vs. Tilghman, 13 Md., 85 .

In the present case the Court below rejected a prayer of the appellee and granted another, supposed to be obnoxious to the objection for which the former was refused. The rejected prayer of the appellee could have no influence properly on the minds of thé jury; it was shut out from their consideration by the action of the Court, apd therefore no conflict could ensue.

But the objection that the fifth prayer has no evidence to sustain it, still' remains to be answered. The appellee insists there is abundant evidence to sustain the hypothesis, that the prosecution was pursued by the defendant, for his private ends, as presented in the fifth prayer, if not, that it was designed by the appellant, to accomplish such private cud, as presented by his third.

*315 As the appellee’s third prayer is not before us on this appeal, we cannot properly review the action of the Court below in rejecting it for the reasons assigned ; but considering the fifth prayer as directed to the measure of damages, to be estimated after the jury had found from the evidence that the prosecution was without probable cause and malicious, we think there was sufficient evidence, to warrant the Court in instructing the jury, they might give punitive damages, “if they found the said prosecution to have been pursued by the defendant for his private ends.”

Assuming that the jury had found the prosecution originated without probable cause and in malice, they might legitimately, if not necessarily, find from the same premises, that the prosecution if pursued, was persisted in for some private end, as the want- of probable cause and malice excluded all public motives.

If the appellant could only justify his prosecution of the appellee, (in the absence of probable cause,) by showing that he had acted in good faith, upon the advice of counsel, given upon a full representation of all the facts, as we have shown in our review of the first exception, it necessarily follows that the appellant’s fifth prayer should not have been granted, as submitted, or as modified. It is not sufficient as that prayer assumes that the defendant or prosecutor acted “ bona fide” and without malice under professional advice, but the advice must be based upon a full disclosure of all the facts in the defendant’s knowledge, or which with due diligence he might have known. The omission of any material fact by design or otherwise, would render the advice nugatory. The appellant was not, therefore injured by granting a prayer more favorable to him than the law authorized.

The fourth point of the appellant is, that tire first prayer of the appellee was calculated to mislead the jury, because it instructed them that certain facts rendered the *316 appellant liable to be sued, provided tbe'v should find certain other facts necessary to render him so liable; which was beyond the grasp of the jury and not law, if the instructions to which it refers, and which were subsequently granted, should turn out as contended by the appellant, to be unsupported by evidence.

It is conceded by the objection, that the first prayer referred to those subsequently granted, a construction necessarily following from the language of the proviso, which although not as specific and particular as it might be in referring to the succeeding prayers of the series, evidently pointed to them.

With this concession, the objection resolves itself into that raised by the fifth point, that there is no sufficient evidence in the record, tending to show want of probable cause, and malice, on the part of the appellant in the prosecution complained of.

The facts enumerated in these prayers as a basis on which-want of probable cause and malice might be predicated, are “ if the appellant aided and assisted in procuring the arrest and prosecution of the appellee in the Criminal Court, and aided in the said prosecution, and the appellee was indicted, tried, and acquitted.in the Criminal Court, on said indictment, and there were no circumstances connected with the transaction out of which said criminal prosecution arose,, which would induce a reasonable, dispassionate man to believe the appellee to have been guilty of the charge made against him, and to induce such a man to have undertaken such a prosecution from public motives, then there was no probable cause for said prosecution, and the jury might infer, in the absence of sufficient proof to satisfy them to the contrary, that said prosecution was malicious in law.”

After the great latitude conceded by the parties to each other, by their agreement that either be .permitted to prosecute and defend on any evidence in the cause, appli *317 cable to any state of the pleadings, and the wide investigation of all the facts connected with the transactions between the plaintiff and defendant, and the proceedings in the criminal and civil courts in Maryland and Virginia, submitted to the jury, tending on the one hand to criminate the plaintiff, and on the other to exculpate the defendant, it required the exercise of very questionable power in the Court to reject the prayers of the plaintiff on the ground that there was no sufficient legal evidence in the cause to support them.

The prayers of the plaintiff submitted to the jury all the facts necessary to constitute a prima facie case, in a suit for malicious prosecution; defined with precision what was the essential evidence of probable cause, and the legal incident of malice to be inferred from its absence, leaving it properly to the jury to determine whether the evidence established the existence or absence of probable cause, and to draw the inference which the absence of probable cause, if found, warranted.

The last objection of the appellant is, that the definition of “probable cause volunteered by the Court, was obscure in itself and calculated to confuse the jury.” The authorities say, it is the province of the Court to instruct the jury what facts constitute in law “probable cause,” and leave it to the jury to find those facts*.

In the case of Boyd vs. Cross, 35 Md., 197 , this Court declared “The want of probable cause is a mixed question of law and fact. As to the existence of the facts relied on to constitute the want of probable cause, that is a question for the jury; but what will amount to the want of probable cause in any case, is a question of law for the Court. The jury, in our practice, are always instructed hypothetically as to what constitutes probable cause, or the want of it, leaving to them to find the facts embraced in the hypothesis.”

The definition of “probable cause” in the instruction granted “ sua sponte” by the Court, is not in the exact *318 language adopted by tbe books, yet it is clearly comprehended by them, and consistent with the decided cases.

In Cecil vs. Clarke, 17 Md., 524 , Ch. J. Le Grand adopted the language of Greenleaf on Evidence, 2d vol., sec. 454, viz : “Probable cause for a criminal prosecution is understood to' be such conduct on the part of the accused-as may induce the Court to infer that the prosecution was undertaken from public motives.”

In Boyd vs. Cross, 35 Md., 197 , this Court says, “ Perhaps the most accurate definition of probable cause is that given by Judge Washington, in Munns vs. Dupont, 3 Wash. C. C. Rep., 31 , as being such reasonable ground of suspicion,- supported by circumstances sufficiently-strong in themselves to warrant a cautious man in believing the party accused to be guilty.”

The Court-below, in the instruction given of its own accord, uses language identical in meaning with that adopted by Judge Washington.

In the prayer granted at the instance of the appellee, the definition is the same, as to the inducements to belief in a reasonable man, that the plaintiff was guilty of the charge made against him, with an additional qualification, “and to induce such a man to have undertaken such a prosecution from public motives.”

The Court’s spontaneous explanation of the meaning of tbe words “probable cause,” may be regarded as a substitution, to that extent, of its last, for its former instruction, simplifying and conforming it to the most recent decisions.

In concluding our review of the several prayers of the appellee, excepted to by the appellant, it may be proper to add, they are not to be construed separately or collectively, unconnected with the prayers of the appellant, granted or conceded in tbe cause.

These imposed upon the appellee the burden of proving that the prosecution (the ground of the present action) *319 was instituted or prosecuted without probable canse and with malice, by the appellant, before he could claim a verdict. They declared that the acquittal of the appellee by the Criminal Court of Baltimore was only “prima facie” evidence of his innocence'of the charge, notwithstanding which he might be found guilty of the offence charged in this case, and submitted to the jury the inquiry, whether the appellee had obtained of the appellant money or stock by false pretences.

(Decided 30th January, 1873.)

The whole ground’in controversy was covered by these instructions.

The law was expounded as favorably to the appellant as he was entitled to, leaving to the jury to find the facts involved in the several instructions, according to the evidence.

Where a full and fair trial has been had, this Court will not be hypercritical to discover technical defects in the rulings of the Court below.

Finding no error in the action of the Court on the several exceptions, the judgment will be affirmed.

Judgment affirmed.