Opinion
06-01-1820
Guerrant v. Tinder. [*]
Wickham for the appellee, Gilmer for the appellants.
[Syllabus Material] [Syllabus Material]
Judgment reversed.
SYLLABUS
This was an action for malicious prosecution, brought by Jesse Tinder, against Peter Guerrant Sen. Henry Huff, Young Jarratt, Leonard Wilson, and Peter Guerrant jr. The declaration sets forth three different wrongs and injuries to the plaintiff. First, that the defendants, maliciously, and without probable cause charged the plaintiff, before Thomas Thompson a magistrate, with stealing a silver watch of he value & c., whereby they procured his arrest and imprisonment. Second, that they maliciously and without probable cause, procured the plaintiff to be brought before the examining court of Franklin county, and remanded to jail for the felony. Third, that they falsely and without probable cause, procured the plaintiff to be indicted for the felony before the grand Jurors of the Superior court of law for Franklin county. The declaration avers the discharge of the plaintiff by the grand Jury; and that the defendants had not farther prosecuted & c.
The defendants pleaded jointly not guilty.
At the trial of the cause, the plaintiff having given in evidence, conversations of the defendants relative to the felony charged, the defendants offered Thomas Thompson, the magistrate who committed Tinder, to prove what they deposed before him, on Tinder's arrest. The plaintiff's counsel objected to the admission of his testimony. The court sustained the objection. The evidence was excluded. The jury found Peter Guerrant, sen'r. Henry Huff, and Peter Guerrant, jr., guilty; and assessed the plaintiff's damages at $ 500. The other defendants were found not guilty. The defendants found guilty, appealed.
This cause was three times argued by Wickham for the appellee, and by Gilmer for the appellants. On the first argument the only question made was, whether it was error to exclude the evidence of Thompson. The court requested arguments afterwards, on the difficulty which presented itself, in reversing the judgment as to the convicted defendants only.
Gilmer for the appellants.
The verdict has given aggregate damages for three several injuries complained of in the declaration, and put in issue by the pleadings. If this verdict would have been bad on a single count stating any one of these injuries separately, it is bad now, for it is entire. Suppose the issue had been joined on a declaration stating the malicious arrest procured from Thompson. The plaintiff must have proved that arrest to have been procured through malice and without probable cause: malice is the foundation of the action; Farmer v. Darling. It may indeed be implied, from total want of probable cause, and it has been held, that the indictment being found " not a true bill," affords inference of want of probable cause. This applies only to malicious prosecutions before grand juries; since it affords no presumption even, of what passed before the committing magistrate. And if it did, the presumption might be repelled by proof. In England, it is the practice, to shew the whole proceedings before the magistrate. And the plaintiff might, indeed he ought, to have shewn the particular accusation made. The rule must be reciprocate, the defendant then, shall have the same liberty.
4 Burr. 1971.
Harg. Co. dit. 161, a. n. 4.
Peake, 288.
It is not allowing the defendants to testify in their own cause: for the plaintiff has put in issue what they swore, by averring it to be false and malicious: how can this be determined without knowing what they have sworn? In slander the defendant might shew he spoke other words than those charged & c.? I do not say the defendants can prove the plaintiff committed the felony, by their own evidence; though they may do even that, if no one else were present when the felony was committed. But I say, that the utmost latitude shall be allowed the defendants in giving evidence to rebut the presumption of malice. It is to negative the inference of malice, that the testimony should be allowed. Suppose a witness were to accuse one of a particular offence, and a magistrate should commit him for another, without any cause: should the wrong of the magistrate condemn the witness. Yet condemned he must be, if he be not allowed to prove the precise allegation he made? The evidence then was clearly admissible.
Peake, 289.
Shall the venire de novo be against all the defendants, or against those only, who were found guilty?
It is said, here has been a mis-trial; if so, Tinder produced it, and he cannot complain of his own error. It is said too, the evidence rejected might have been advantageous to him: then he should not have objected to it: had he moved to exclude the evidence, and the motion been overruled, he might have appealed. Can he appeal because a motion was denied at his request? Suppose all the defendants had been found not guilty, it is clear he could not then have reversed the judgment, because evidence was excluded on his motion. What then is the distinction in this case? The acquitted defendants are no longer parties to any pending suit.
An appeal under our statute, stands in place of a writ of error at common law; now a writ of error lies to reverse a final judgment injurious to the party claiming it.
2 Saund. 46, n. 6, 101, e. 101, a. n. 1; 2 Ba. abr. 456, B.; Co. Lit. 288, D.
No matter what names are on the record, they only are appellants, whose names are under the ad grave damnum. A writ of error therefore, can be brought only by one who is injured by the judgment. The acquitted defendants, are not injured; their names ought to appear in the record, but not under the ad grave damnum. This is what is done. They cannot be appellants, for no judgment can be more beneficial to them, than that already rendered.
Brewer v. Turner, 1 Str. 233; 2 Str. 1110.
1 Str. 682.
It is said, that the judgment is entire, and must be affirmed or reversed throughout; how can a judgment acquitting A. be entire with one convicting B.? The parties are severed by the verdict, and the judgment cannot re-unite them. Even if it were entire, it might be affirmed in part, and reversed in part.
1 Str. 188; 2 Str. 808.
But Verelst and Smith v. Rafael is conclusive upon the point; it is supported by other authorities, and it would have been error for the acquitted defendants to join in the appeal. The venire then, must be confined to those found guilty by the verdict.
Cowp. 425.
Note. This cause was argued before a reporter was appointed, and I regret, that no notes were taken of Mr. Wickham's reply, which could enable me to give its substance. --Edition 1821. 2 Saund. 101. f; 2 Ba. abr. 461, B.
OPINION
Roane, Judge. [*]
The court is of opinion, that the plaintiff in this case, having given evidence at the trial, of certain conversations of the defendants, relative to the facts whereon the prosecution for felony was founded, with the view to impute malice to them, it was competent to them for the purpose of obviating that imputation, to shew as well what they actually swore before the magistrate, as the manner and circumstances thereof. This is emphatically the opinion of the court, because regularly in an action for malicious prosecution, the plaintiff ought himself to give evidence of what was sworn on the trial. This evidence being rejected by the court in the present case, the judgment must be reversed, and a new trial awarded, in which the evidence offered is to be admitted if requested.
On the question whether the reversal is to be extended to the judgment in favour of the acquitted defendants also, the court is of opinion, that it is not: in which opinion Judge Brooke who did not sit as to the previous question concurs.
The opinion expressed by the court below, although erroneous, gave in itself no right of appeal by motion for a new trial or otherwise. It gave none to the defendants although it rejected their testimony, and was excepted to by them. It was only when a verdict was rendered against them, which may have been influenced by this rejection, that a right to a new trial arose: until this event, the opinion is to be considered as abstract and harmless. If all the defendants had been acquitted no new trial could have been asked by them: nor could the plaintiff have complained, because the opinion was founded on his motion, and rejected his adversaries evidence. That rejection cannot be deemed to have been injurious to him. It was not that rejection, but the defect of his own proofs in relation to the acquitted defendants, which produced their acquittal. Neither he nor they therefore, in the case of a total acquittal, could ask for a new trial. It remains, to inquire whether this may be done in the actual case before us, at the instance of the convicted defendants, so as to jeopard again, those who have been acquitted. The only ground on which this can be asked for by the former is, that they have been injured by the acquittal of the others, and have an interest in having them convicted. This ground however was overruled by this court in the case of Boswell v. Jones. It was not deemed in that case a sufficient interest to subject the acquitted defendants to another trial.
1 Wash. (VA) 322.
If this then was a mere motion for a new trial, it would not be awarded except as to the convicted defendants: and how is the case altered when it occurs in the appellate court?
In the case of Johnson v. Macon, it was stated by the President of the court, that a motion for a new trial on the ground of a misdirection, is never made before the same Judge, but before the appellate court, upon an exception taken in the court below. We are of opinion that this ground is quite too narrow. The same Judge may upon a deliberate motion for a new trial supported by argument and authority, retract a hasty opinion expressed by him in the progress of the trial. That course too, would save the expense and delay of appealing to a Superior court for that purpose. But as he may not retract this error, an application for a new trial may be also made to the appellate court, and to that end, an exception is provided. On the appeal, the application is still in effect for a new trial: and it would seem, that none are to be subjected thereto by the appellate court, who could not have been so subjected by a direct motion in the court below. In principle there is no difference between the two cases. It is a general principle, that an appeal will only lie, in behalf of a party injured by a decision, and to the extent of that injury: and this principle equally prevails, in whatever court the motion is made, and by whatever form of proceeding.
1 Wash. 4.
We are of opinion therefore, that the Judgment is only to be reversed, and a venire de novo awarded, as between the parties to the appeal.
MALICIOUS PROSECUTION.
I. What Prosecutions May Give Right of Action.
II. Constituent Elements of the Tort.
III. Institution and Termination of Prosecution.
IV. Probable Cause.
1. Definition.
2. Facts within Prosecutor's Knowledge.
3. Information Received from Others.
4. Belief in Guilt of Accused.
5. Commitment by Magistrate.
6. Waiver of Preliminary Examination.
7. Discharge by Magistrate.
8. Refusal of Grand Jury to Indict.
9. A Mixed Question of Law and Fact.
10. Want of Probable Cause Cannot Be Inferred from Malice.
V. Malice.
VI. Necessity for Concurrence of Malice and Want of Probable Cause.
VII. Advice of Counsel.
VIII. Evidence.
IX. Damages.
X. Matters of Procedure.
1. Jurisdiction.
2. Form of Action.
3. Parties.
4. Declaration.
5. Instructions.
6. Limitations.
I. WHAT PROSECUTIONS MAY GIVE RIGHT OF ACTION.
Contempt Proceedings.
A rule for contempt, though the judicial act of the court issuing it, may be the foundation for an action for malicious prosecution, provided the application for the same is without probable cause, actuated by impure and malicious motives, and founded on falsehood or misrepresentation. Tavenner v. Morehead, 41 W.Va. 116, 23 S.E. 673.
Injunction.
So also, where an injunction is sued out maliciously and without probable cause, an action for malicious prosecution may be maintained. Glen Jean, etc., R. Co. v. Kanawha, etc., R. Co., 47 W.Va. 725, 35 S.E. 978.
Attachment Proceedings.
The legislature, considering that the remedy afforded by malicious prosecution did not afford an adequate protection against the abuse of a process by an attachment provided by sec. 22, ch. 151, Code 1849, that " the right to sue out an attachment may be contested; and when the court is of opinion that it was issued on false suggestions or without sufficient cause, judgment shall be entered that the attachment be abated." Claflin v. Steenbock, 18 Gratt. 842; Spengler v. Davy, 15 Gratt. 381. The court, in the case first above cited, draws the distinction between the two remedies, saying that the object of the action for damages is to obtain indemnity from the parties, and to inflict punishment upon him for wrongfully and maliciously abusing the process, whereby the plaintiff in the action has been injured and oppressed, while the object of the motion is to arrest the mischief by abating the attachment. On this subject, see monographic note on " Attachment" appended to Lancaster v. Wilson, 27 Gratt. 624.
Other Civil Suits.
If a person agree to pay the debt of another to a third party, and either pay or be in a condition to pay it, and, having control of such third party's debt, wilfully ignoring his obligation, maliciously institutes judicial proceedings, and carries them through to a finality in such third party's name for the purpose of sacrificing the debtor's property and destroying his business, such proceedings are without probable cause, and render such person liable to an action for malicious prosecution. Porter v. Mack, 50 W.Va. 581, 40 S.E. 459.
But if a person who has assumed to pay the debt of another be not in condition for any reason to do so, and at the same time he is the agent for the creditor, and it is his duty as such agent to collect the debt of his debtor, his performance of the duty by legal proceedings is not without probable cause, and will not render him liable to a suit for malicious prosecution, although the debt, interest, and costs may be recovered from him in an action of assumpsit for breach of his contract. Porter v. Mack, 50 W.Va. 581, 40 S.E. 459.
II. CONSTITUENT ELEMENTS OF THE TORT.
To warrant a verdict and judgment for damages in an action for malicious prosecution it must be proved on the part of the plaintiff: First, that the prosecution alleged in the declaration has been set on foot and conducted to its termination, and that it ended in the final acquittal and discharge of the plaintiff. Second, that it was instigated or procured by the co-operation of the defendant. Third, that it was without probable cause. Fourth, that it was malicious. Scott v. Shelor, 28 Gratt. 891; Vinal v. Core, 18 W.Va. 1.
III. INSTITUTION AND TERMINATION OF PROSECUTION.
Generally.
By the requirement that the prosecution must have been set on foot and conducted to its termination resulting in the final discharge of the plaintiff, is meant that the plaintiff must have been arrested under a process not absolutely void. And by its being ended is meant, not that the plaintiff had been so discharged that no subsequent prosecution for the same alleged crime could have been instituted, but only that this particular prosecution was ended. Vinal v. Core, 18 W.Va. 1.
Prosecution Must Have Ended in Acquittal.
Although an action for malicious prosecution cannot be maintained, unless the plaintiff has been fully acquitted of the criminal charge, yet the plaintiff is not obliged to prove that he was acquitted by the jury promptly, without hesitation, delay or deliberation; and the evidence of a juror to show that the deliberation of the jury was caused by their doubt as to the guilt or innocence of the accused is inadmissible. Scott v. Shelor, 28 Gratt. 891.
Reason for Requiring Termination of Proceedings.
The purpose of requiring allegation and proof of the termination of the prosecution is to avoid the litigation of the same thing at the same time in separate proceedings. So long as the criminal action is pending the innocence of the accused cannot be litigated in the civil action, since the accused may eventually be found guilty in the criminal proceeding; and, if guilty, no civil action can be maintained. This being the reason for the allegation and proof of finality of the prosecution, it follows that the manner of ending it is immaterial, provided it be finally terminated in favor of the prisoner. But in the case of Ward v. Reasor, 98 Va. 399, 36 S.E. 470, the court sustained a demurrer to a declaration because it alleged that the magistrate, before whom the accused was brought for trial, dismissed the proceedings " without hearing any evidence," though there were the usual allegations of malice, want of probable cause, and termination of the prosecution favorably to the accused. This action of the magistrate was held by the court to be tantamount to the entry of a nolle prosequi, and the court said that where a prosecution is so ended, no action for malicious prosecution can be maintained. For a criticism of this case, see editorial in 6 Va. Law Reg. 356. See also. Scott v. Shelor, 28 Gratt. 891.
IV. PROBABLE CAUSE.
1. DEFINITION.
Probable cause, in a criminal prosecution, is the existence of such facts and circumstances as would excite the belief in a reasonable mind, acting on the facts within the knowledge of the prosecutor, that the person charged was guilty of the crime for which he was prosecuted. Scott v. Shelor, 28 Gratt. 891; Vinal v. Core, 18 W.Va. 1.
In a case brought for maliciously suing out an attachment it was held that justifiable probable cause for suing out an attachment against the effects of a debtor, is a belief by the attaching creditor in the existence of the facts essential to the prosecution of the attachment, founded upon such circumstances as were sufficient to produce such belief in the mind of a man of ordinary caution, prudence and judgment. Spengler v. Davy, 15 Gratt. 381. See also, Claflin v. Steenbock, 18 Gratt. 842.
2. FACTS WITHIN PROSECUTOR'S KNOWLEDGE.
If facts exist which render it probable that a certain party has committed a crime the public interest requires that he should be prosecuted; and if it turns out that he was innocent he has suffered damnum absque injuria, even though the prosecutor was influenced by improper motives or malignant feelings. This doctrine is based upon public policy, which requires that prosecution for an offence should not be discouraged, when there is probable cause to charge a particular party with the crime. Vinal v. Core, 18 W.Va. 1. Hence, it may be laid down as a general rule that if the defendant, being a man of ordinary prudence, believed in good faith from his own knowledge and understanding of the facts and circumstances, that the judicial proceeding instituted by him was necessary and justifiable, he cannot be held liable, although it should be afterwards made to appear, in a suit for that purpose by a preponderance of evidence, that such proceedings were without just foundation. Porter v. Mack, 50 W.Va. 581, 40 S.E. 459; Sisk v. Hurst, 1 W.Va. 53; Vinal v. Core, 18 W.Va. 1; Spengler v. Davy, 15 Gratt. 381 at 384. See also, Claflin v. Steenbock, 18 Gratt. 842.
It has been said that as the reason for the averment of want of probable cause is merely because no man can maintain an action for a malicious prosecution where there was probable cause, it is obvious that these words should be made to refer to the state of fact, as it respects the person prosecuted, and not to the degree of knowledge of that fact in the party prosecuting. Mowry v. Miller, 3 Leigh 561. And this rule, though criticized in Spengler v. Davy, 15 Gratt. 381 at 388, was approved in two recent West Virginia cases, -- Brady v. Stiltner, 40 W.Va. 289, 21 S.E. 729; Porter v. Mack, 50 W.Va. 581, 40 S.E. 459.
But where the facts within the knowledge of the prosecutor are not sufficient to cause a reasonable and prudent man to believe that the accused is guilty of the crime charged the prosecution is without probable cause, and the prosecutor is liable, if the other elements of the tort are present. Thus in a case where the plaintiff was arrested by the procurement of the defendant on a charge of larceny of certain oil, the evidence adduced showed that when he was alleged to have stolen the oil he was in possession thereof as tenant of oil wells, it being oil which he had himself produced. It further appeared that he was bound to deliver one-third of the oil as rent to his landlord whenever called upon to do so, and that he was forbidden by his contract to remove any oil from the premises without notice to his landlord; that without such notice he did remove all the oil, which at a particular time he had on the premises, and appropriated it to his own use, claiming that there was no rent oil then due to his landlord, because more oil had been taken as rent on a previous occasion by the landlord than he was entitled to; and that this had been taken in the absence of the plaintiff. These facts and this claim of the plaintiff was known to the prosecutors. They, nevertheless, had him arrested on a charge of stealing the rent oil claimed to have been due and taken off under these circumstances, and appropriated by the plaintiff to his own use. It was held that there was no probable cause to justify the defendant in procuring this prosecution to be set on foot and a verdict in favor of the plaintiff was sustained. Vinal v. Core, 18 W.Va. 1.
3. INFORMATION RECEIVED FROM OTHERS.
So also, a party is not liable for damages when he has information received from reliable sources, which leads him, as a prudent man, to suspect or believe that the person alleged to have committed an offence, was engaged with others in committing the same, or was in company with others who actually committed the offence. Sisk v. Hurst, 1 W.Va. 53; Porter v. Mack, 50 W.Va. 581, 40 S.E. 459.
4. BELIEF IN GUILT OF ACCUSED.
To sustain an averment of probable cause, the plaintiff must show such a state of facts as precludes a reasonable ground of belief in the minds of the defendants, warranting them to institute and maintain in good faith the alleged malicious proceedings. Porter v. Mack, 50 W.Va. 581, 40 S.E. 459.
A belief by an attaching creditor in the existence of facts essential to the prosecution of his attachment, founded upon such circumstances as are sufficient to induce such belief in the mind of a man of ordinary caution, prudence and judgment, is justifiable and probable cause for suing out an attachment. Burkhart v. Jennings, 2 W.Va. 242.
5. COMMITMENT BY MAGISTRATE.
The commitment by a magistrate, of a person accused of felony, or binding him in a recognizance to appear at court and answer the charge, is sufficient evidence that the prosecution was with probable cause, although the person accused was acquitted by the court, unless in his action for malicious prosecution, he can prove by other evidence that the prosecution was in fact without any probable cause. Maddox v. Jackson, 4 Munf. 462; Blanks v. Robinson, 1 Va. Dec. 600; Womack v. Circle, 29 Gratt. 192.
And the judgment of a justice holding a party guilty of petit larceny, which judgment is reversed on appeal, is only prima facie evidence of probable cause in an action for malicious prosecution by the party so adjudged guilty. Blanks v. Robinson, 1 Va. Dec. 600. This case overrules the case of Womack v. Circle, 32 Gratt. 324, where it was held that a judgment of a justice requiring a party accused of a misdemeanor, to give security for good behavior, though the judgment was reversed on appeal, was conclusive evidence of probable cause for the prosecution unless the testimony before the justice was known to be false by the prosecutor. See also, Womack v. Circle, 29 Gratt. 192.
In an action for malicious prosecution the weak presumption that exists in every case, that every public prosecution is founded on probable cause, is strengthened by proof, that the plaintiff had after an examination by a justice been committed to jail to answer an indictment when found; but this presumption is still capable of being rebutted by other testimony showing that there was no probable cause. Hale v. Boylen, 22 W.Va. 234.
6. WAIVER OF PRELIMINARY EXAMINATION.
The waiver of a preliminary examination by a person charged with crime is also prima facie evidence of probable cause. Brady v. Stiltner, 40 W.Va. 289, 21 S.E. 729.
7. DISCHARGE BY MAGISTRATE.
That the converse of the proposition above laid down, as to the commitment by a justice, is true, and that the judgment of the justice dismissing the complaint is prima facie evidence of the want of probable cause for the prosecution, has never been doubted. Jones v. Finch, 84 Va. 204, 4 S.E. 342; Womack v. Circle, 32 Gratt. 324; Blanks v. Robinson, 1 Va. Dec. 600; Harper v. Harper, 49 W.Va. 661, 39 S.E. 661; Vinal v. Core, 18 W.Va. 1; Brady v. Stiltner, 40 W.Va. 289, 21 S.E. 729.
An acquittal before a United States commissioner is likewise prima facie evidence of want of probable cause, as the functions of such a commissioner in committing for trial are precisely like those of a justice of the peace. Jones v. Finch, 84 Va. 204, 4 S.E. 342; Womack v. Circle, 32 Gratt. 324; Blanks v. Robinson, 1 Va. Dec. 600.
8. REFUSAL OF GRAND JURY TO INDICT.
The refusal of the grand jury to indict is prima facie evidence of want of probable cause, except where it appears that refusal to indict was after the hearing of the witnesses for the accused as well as for the prosecution; but such prima facie evidence is liable to be rebutted by proof. Harper v. Harper, 49 W.Va. 661, 39 S.E. 661.
When the refusal of the grand jury to indict is opposed to the refusal of the justice to discharge, one rebuts the other, so as to render neither prima facie evidence of the existence or want of probable cause; and, if the plaintiff manages in any way to have the evidence for his defense considered by the grand jury, their finding is tantamount to an acquittal by a petit jury, and is not prima facie evidence of the want of probable cause on the part of the prosecutor. Brady v. Stiltner, 40 W.Va. 289, 21 S.E. 729.
9. A MIXED QUESTION OF LAW AND FACT.
Probable cause is a mixed question of law and fact. What are existing facts, of which probable cause or its absence may be predicated, is a question of fact to be decided by the jury. But in those cases where the facts are admitted, or are undisputed or assumed, the question whether they constitute probable cause or not, or whether from them the existence or the absence of probable cause is to be inferred, are questions of law for the decisions of the court and not for the jury. Vinal v. Core, 18 W.Va. 1.
10. WANT OF PROBABLE CAUSE CANNOT BE INFERRED FROM MALICE.
Though, as will be seen later, malice may be inferred from want of probable cause, yet no rule is better settled than that want of probable cause can never be inferred from malice no matter how strong the evidence of malice may be. Vinal v. Core, 18 W.Va. 1; Scott v. Shelor, 28 Gratt. 891; Womack v. Circle, 32 Gratt. 324; Spengler v. Davy, 15 Gratt. 381; Forbes v. Hagman, 75 Va. 168.
V. MALICE.
Definition.
Malice may be defined as some motive other than a desire to have punished a person believed by the prosecutor to be guilty of the crime charged. It is a sinister or improper motive, and may be malignity or a desire by means of the prosecutor to get possession of the goods alleged to be stolen, or any other improper motive. Vinal v. Core, 18 W.Va. 1.
In a legal sense, any unlawful act which is done wilfully and purposely, to the injury of another, is, as against that person, malicious. Scott v. Shelor, 28 Gratt. 891.
Malice Inferred from Probable Cause.
Malice may be inferred from the want of probable cause, but the latter can never be inferred from the plainest malice. The improper motive, or want of a proper motive, inferrible from a wrongful act, based on no reasonable ground, constitutes of itself all the malice deemed essential in law to the maintenance of an action for malicious prosecution. Scott v. Shelor, 28 Gratt. 891; Womack v. Circle, 32 Gratt. 324; Spengler v. Davy, 15 Gratt. 381.
So, in Forbes v. Hagman, 75 Va. 168, which was a kindred action for false imprisonment, it was held that malice might be inferred from want of probable cause. And in this case malice was defined as " malus animus, and as denoting that the party is actuated by an improper and indirect motive. The improper motive, inferrible from a wrongful act, based upon no reasonable ground constitutes of itself all the malice deemed essential in law to the maintenance of the action."
Malice a Question for the Jury.
As malice consists in some improper motive or the absence of a proper motive, it is obviously a question for the jury in all cases. And though there be no express evidence of malice, the jury may infer it from probable cause alone. This inference, however, is an inference of fact and not of law and must be drawn by the jury and not by the court; and being an inference of fact merely, it is of course not necessarily to be drawn and is liable to be rebutted. Vinal v. Core, 18 W.Va. 1.
In a case in which the declaration did not allege malice, it was held improper to admit evidence to show that the act of suing out an attachment was instigated by malice. Burkhart v. Jennings, 2 W.Va. 242.
VI. NECESSITY FOR CONCURRENCE OF MALICE AND WANT OF PROBABLE CAUSE.
It is essential to the plaintiff's recovery in an action for malicious prosecution that there should be proof of the concurrence of malice and want of probable cause. Malice alone, or want of probable cause alone, is insufficient to give the ground of action. Vinal v. Core, 18 W.Va. 1.
VII. ADVICE OF COUNSEL.
Advice of Counsel as Evidence of Probable Cause.
The advice of counsel to the defendant to institute the criminal proceedings ought not to be taken into consideration in determining whether probable cause existed or not. Vinal v. Core, 18 W.Va. 1.
Advice of Counsel as Evidence of Want of Malice.
The advice of the counsel to the defendant to institute criminal proceedings may be considered by the jury in determining the question of fact, whether the defendant was or was not actuated by malice. The fact that the defendant acted upon the advice of counsel is entitled to more or less weight or to no weight at all according to all the circumstances attending it, all of which should be considered by the jury. Among the circumstances referred to the following are believed to be the more important: Whether the advice of counsel was sought bona fide or was sought only as a mode of protecting the defendants in a contemplated wrong; whether it was followed in good faith or not; whether it was really believed to be good counsel by the defendant; whether the attorney giving the advice was an attorney of character and standing or otherwise; whether he was or was not candid and disinterested in the opinion of the defendant in giving the advice; whether all the facts and circumstances as known to the defendant were frankly communicated to the attorney, or a portion of them suppressed or misstated; whether the defendant had or had not made a careful investigation of the facts before consulting counsel. Vinal v. Core, 18 W.Va. 1.
Or, as was said in another case, if the defendant relies upon the defense that he acted under the advice of counsel and not upon a fixed determination of his own, the burden is on him to prove that he sought counsel with an honest purpose of being informed as to the law, that he made a full, correct, and honest disclosure to his counsel of all the material facts within his knowledge bearing on the guilt of the plaintiff, and that he was in good faith guided by the advice of such counsel in causing the arrest of the plaintiff. Whether such disclosures were made, or the defendant in good faith acted on such advice are questions for the jury under the evidence in the particular case. Jones v. Morris, 97 Va. 43, 33 S.E. 377.
Where a party applies to a justice for a warrant for the arrest of another, and details to the justice the whole of the information he has derived from other persons as to the commission of an offence by the party whom he seeks to arrest, and the justice in the discharge of his duty, advises the issuing of the warrant against him, this is such a matter of defence to an action for malicious prosecution as will prevent the recovery of damages by the party arrested. Sisk v. Hurst, 1 W.Va. 53.
VIII. EVIDENCE.
Burden of Proving Probable Cause.
As the law presumes that every public prosecution is founded on probable cause, the burden of proving the want of probable cause in the first instance must be upon the plaintiff. In every such case, therefore, he must show some evidence of the want of probable cause, before the defendant can be called upon to justify his conduct. But as the plaintiff is thus called upon to prove a negative, slight evidence is often regarded as sufficient to prove the want of probable cause. Vinal v. Core, 18 W.Va. 1; Scott v. Shelor, 28 Gratt. 891.
And although the allegation or want of probable cause in the declaration is negative in its character, yet it must be proved or the plaintiff must fail in his action. Scott v. Shelor, 28 Gratt. 891.
Though the facts on which are based the existence or nonexistence of probable cause are those known to the defendant when the prosecution was begun by him, yet he may be presumed by the jury to know all the existing facts, and the burden is on him to satisfy the jury that any particular fact proven to be then existing was unknown to him. Vinal v. Core, 18 W.Va. 1.
Bad Character of Plaintiff as Evidence.
The bad character of the plaintiff is a fact or circumstance to be considered in determining whether there was or was not probable cause, or it may be considered in mitigation of damages. Vinal v. Core, 18 W.Va. 1.
Rebuttal of Evidence to Show Malice.
In an action for malicious prosecution the plaintiff having given evidence of conversations of the defendant to show malice, the defendant may prove by the committing magistrate what he swore before him. Guerrant v. Tinder, Gilm. 36.
IX. DAMAGES.
Measure of Damages--Punitive Damages.
In an action for malicious prosecution for a crime alleged to have been committed by the plaintiff, the measure of damages is such an amount as will compensate the plaintiff for the actual outlay and expenses about his defense in the prosecution against him, and for his loss of time, and for the injury to his feelings, person and character by his detention in custody and prosecution. And if the jury should find that the prosecution was commenced or pursued for private ends or with reckless disregard of the rights of the plaintiff they may, in addition to the damages above enumerated, give such punitive damages as they may think proper for such conduct on the part of the defendant. Vinal v. Core, 18 W.Va. 1.
Evidence to Enhance Damages.
In an action for slander, malicious prosecution and false imprisonment, the plaintiff, in order to show the wealth and influence of the defendant, offered in evidence certified abstracts from books containing the returns of the assessments for taxation on the land and personal property belonging to the defendant for the year in which the trial of the cause took place. There being no objection to the form of the abstracts, or that they did not truly state what they purported, they were held admissible in evidence. Womack v. Circle, 29 Gratt. 192.
Excessive Damages Allowed by Jury.
Where the damages awarded by the jury are excessive the court may set aside the verdict, or it may put the plaintiff upon terms. That is, the court will award a new trial unless the plaintiff agrees to remit a portion of the damages allowed by the jury. Vinal v. Core, 18 W.Va. 1.
But a new trial should not be granted because the damages are excessive, unless they are so large as to furnish evidence of prejudice, partiality, passion or corruption on the part of the jury. This rule applies with special force to new trials by the appellate court. Vinal v. Core, 18 W.Va. 1.
Liability of Joint Defendants for Damages.
Where two persons are sued jointly they are both responsible to the full extent of the damages which the plaintiff is entitled to recover against either, though one may have been actuated by malignity and the other by no malice except such as was inferrible from his uniting with his co-defendant in doing a wrongful act. Vinal v. Core, 18 W.Va. 1.
Evidence of Plaintiff's Bad Character in Mitigation of Damages.
The bad character of the plaintiff may be given in evidence in mitigation of damages. Vinal v. Core, 18 W.Va. 1.
Fraud of Plaintiff in Mitigation of Damages.
Where it appears that there was no probable cause for charging the plaintiff with larceny, but it appears that he was guilty of gross fraud in appropriating the property of another to his own use, which property was in his custody but to which he neither had a just claim nor believed he had any claim, such fraud should be considered in mitigation of damages, to which he may be entitled in an action for maliciously prosecuting him for stealing such property, and makes it improper for the jury in such case to award punitive damages. Vinal v. Core, 18 W.Va. 1.
X. MATTERS OF PROCEDURE.
1. JURISDICTION.
Where two joint defendants in an action for malicious prosecution have been served with process within the jurisdiction of the court in which the action is brought, the court has jurisdiction of the action, though one of the defendants is a nonresident of the state, and though the cause of action arose in a county of the circuit other than the county in which the court is sitting. Vinal v. Core, 18 W.Va. 1.
2. FORM OF ACTION.
The proper action to bring for an alleged prosecution is trespass on the case, and not trespass vi et armis. Shaver v. White, 6 Munf. 110.
3. PARTIES.
Where Third Party Procures the Prosecution.
An action on the case for procuring a malicious prosecution may be maintained by the person prosecuted, against him who procured such prosecution to be maintained. Mowry v. Miller, 3 Leigh 561.
Joint Action.
For a malicious prosecution, two or more persons may be sued jointly in one action, or severally in separate actions. But counts against two or more cannot be joined in the same declaration with counts against each person severally. McMullin v. Church, 82 Va. 501.
Against Party Maliciously Suing Out an Attachment.
An action for malicious prosecution may be maintained against one who, maliciously and without probable cause, sues out an attachment, and causes it to be levied on the property of another. Shaver v. White, 6 Munf. 110; Spengler v. Davy, 15 Gratt. 381; Burkhart v. Jennings, 2 W.Va. 242; Claflin v. Steenbock, 18 Gratt. 842.
Joint Action--Motion for New Trial.
Where, in an action for malicious prosecution against several defendants, some of whom are found guilty and some innocent, there is a motion for a new trial by those found guilty because of the improper exclusion of evidence by the court, a new trial will be granted only as to those found guilty. Guerrant v. Tinder, Gilm. 36.
4. DECLARATION.
Essential Averments in General.
To be sufficient in law, the declaration, in an action for malicious prosecution, should allege (1) the prosecution in its particulars; (2) that it was set on foot, instigated, or procured by the defendant; (3) that it had terminated favorably to the plaintiff; (4) that it was without probable cause; and (5) that it was malicious. Womack v. Circle, 29 Gratt. 192; Blanks v. Robinson, 1 Va. Dec. 600; Scott v. Shelor, 28 Gratt. 891; Ward v. Reasor, 98 Va. 399, 36 S.E. 470; Vinal v. Core, 18 W.Va. 1.
Averment of Want of Probable Cause.
The want of probable cause is an essential averment in the declaration in an action on the case for malicious prosecution. Porter v. Mack, 50 W.Va. 581, 40 S.E. 459; Ellis v. Thilman, 3 Call 3; Young v. Gregorie, 3 Call 446; Kirtley v. Deck, 2 Munf. 10; Scott v. Shelor, 28 Gratt. 891; Marshall v. Bussard, Gilmer 9; Burkhart v. Jennings, 2 W.Va. 242; Tavenner v. Morehead, 41 W.Va. 116, 23 S.E. 673; Mowry v. Miller, 3 Leigh 561; Spengler v. Davy, 15 Gratt. 381 at 388.
And it seems to be essential that the words " without probable cause" should be used in the declaration. Thus it has been held that a declaration alleging that the acts were done " wrongfully and injuriously without good cause" is not sufficient, as these words are not equivalents for the words required by law. Burkhart v. Jennings, 2 W.Va. 242. And in the case of Young v. Gregorie, 3 Call 446, the court held, that " justifiable" was not equivalent to " proper cause" ; and in Kirtley v. Deck, 2 Munf. 10, it was decided, that the words " false and malicious" were insufficient, but there must also be added " without probable cause." See also, Marshall v. Bussard, Gilm. 9. And an allegation that the prosecution was without just cause is insufficient. Ellis v. Thilman, 3 Call 3.
The declaration in a special action on the case, for suing out a foreign attachment, must aver both malice and want of probable cause, either expressly or by equivalent words, Marshall v. Bussard, Gilm. 9; Burkhart v. Jennings, 2 W.Va. 242.
Averment of Malice.
So, also, it is essential that the declaration in an action for malicious prosecution should aver that the prosecution was instigated by the defendant through malice. And the declaration must set forth the alleged malicious conduct of the defendant of which the cause of action is predicated, otherwise it will be demurrable. Tavenner v. Morehead, 41 W.Va. 116, 23 S.E. 673.
Averment of Termination of Prosecution.
And a declaration charging a conspiracy to sacrifice and destroy the plaintiff's property and business by the malicious use of judicial proceeding must allege that such proceedings were instigated, instituted, and prosecuted to finality by the defendants. Porter v. Mack, 50 W.Va. 581, 40 S.E. 459.
But where, in an action for procuring a malicious prosecution, the day on which the plaintiff was acquitted is stated in the declaration under a scilicet, a variance between the day so laid and the day stated in the record by which the acquittal is proved, is not material; it is sufficient for the declaration to allege that the acquittal took place before the suit was brought. Mowry v. Miller, 3 Leigh 561.
Where, in an action for maliciously suing out an attachment against the effects of the plaintiff, the declaration alleges that the attachment was sued out " wrongfully and without good cause," instead of " maliciously and without probable cause," this irregularity is cured by the verdict. Spengler v. Davy, 15 Gratt. 381.
5. INSTRUCTIONS.
The court should not instruct the jury that probable cause is proved to have existed at the time the prosecution was instituted; but the question as to the weight of the testimony should be left to the jury, unless the facts on which such question depends be agreed by the pleadings, or be submitted to the court by the parties or by the jury. Crabtree v. Horton. 4 Munf. 59.
But upon a supposed or assumed state of facts, if there is testimony tending to prove such facts, and they are pertinent to the question, the court is bound, at the instance of the parties, to instruct the jury whether such supposed or assumed state of facts does or does not amount to probable cause. Vinal v. Core, 18 W.Va. 1.
An instruction to the jury that if they believe the prosecution to have been without reasonable and probable cause they must find for the plaintiff, is not objectionable because containing the word " reasonable," as this does not restrict the ordinary meaning of the words " probable cause." Forbes v. Hagman, 75 Va. 168.
An instruction to the jury that a magistrate having committed the plaintiff, or bound him in a recognizance to answer the charge, " furnished sufficient evidence of the probable cause to induce the prosecution," is not to be understood as excluding from the jury other evidence on the part of the plaintiff to disprove the probable cause inferrible from such commitment or recognizance. Maddox v. Jackson, 4 Munf. 462.
The judgment of the justice, though reversed, is prima facie evidence of probable cause; and an instruction by the court to the jury which properly propounds the law upon this point is unobjectionable. Womack v. Circle, 29 Gratt. 192. See ante, this note, " Probable Cause--Commitment by Magistrate."
6. LIMITATIONS.
An action for malicious prosecution, sounding in consequential and punitive damages, although affecting business and property, is such a personal action as does not survive to the personal representative, and is barred by the statute of limitations after one year from the time when the right to bring the same first accrued. Porter v. Mack, 50 W.Va. 581, 40 S.E. 459; Mumpower v. City of Bristol, 94 Va. 737, 27 S.E. 581, 3 Va. Law Reg. 439, and note.
[*]For monographic note on Malicious Prosecution, see end of case.
[*]Brooke absent.