Southern Express Co. v. Couch , 133 Ala. 285 ( 1901 )

SHARPE, J.

An actionable wrong involves liability to -one by whom its commission has been incited or encouraged, as well as to its immediate perpetrators. Bishop Non Contract Law, §§ 523, 524. This general principle applies to cases of malicious prosecution. Porter v. Martyn, (Tex.), 32 S. W. Rep. 731; 19 Am. & Eng. Ency. Law, 692.

It was possible for the defendant Express Company to have instigated or encouraged the prosecution here complained of without ostensibly appearing therein, and for it to have done so through an agent lacking authority to actually install the defendant as the prosecutor. Its special agent Burns, though disclaiming authority to order an arrest and prosecute in its behalf, testified his duties “required him whenever a theft or robbery had been committed, to investigate the matter, and if possible find out who the robbers were and bring them to justice.” Inquiries and statements addressed by him to Wilson, if made, as some evidence tends [to show, after the plaintiff had been arrested and before his discharge, concerning plaintiff’s movements and expenditures of money recently after the robbery, were proper to be proven as indicating that defendant employed efforts to obtain evidence for use in the pending prosecution.

The question asked on the cross-examination of Mothershed as to whether Burns expressed the opinion that he, Mothershed, had sufficient evidence to 'convict this plaintiff of the robbery, was not subject to the objection. It called for testimony relevant upon the issue towards which the evidence on both sides was mainly directed, viz., whether the Express Company through its agents induced or encouraged Mothershed to prosecute.

But though defendant’s conduct may have been calculated to further the prosecution, it was harmless if it did not conduce to that end. If Mothershed prosecuted independently of defendant’s influence and solely of his own volition or on the advice of others, defendant is not liable for that action whatever its own efforts or motives may have been. As tending to show he did so, defendant should have been allowed to prove, according to its offer, that he 'submitted fully and fairly all the facts in regard to plaintiff’s guilt to a responsible practicing attorney, and was by him advised that the evidence was sufficient to justify conviction. Direct authority for the admission of such evidence is found in Chandler v. McPherson, 11 Ala. 916, where, as here, the plaintiff’s theory was that the defendant maliciously caused a third person to commence a prosecution. On the trial of that case the evidence was admitted 'against the objection to effect that the ostensible prosecutor Mi’s. Formby made a statement of facts pertaining to the case to an attorney and thereupon ivas by him advised that she could sustain a prosecution. This court justified the admission of that evidence, saying: “We think the testimony of the legal adviser of Mr®. Formby was admissible, not for the purpose of relieving the defendants 'from the imputation of malice, for there is no evidence to show that they were cognizant of this advice; but the testimony might have been considered by the jury upon an inquiry whether Mrs. F. was influenced by the counsel of the attorney or the prompting of the defendants. It may be that the defendants first instigated the prosecution, yet the prosecutor may have availed herself of the locus penitentixie, and would not have become an actor but for the professional advice she received. If this hypothesis is well founded, then the defendants cannot with 'any propriety, be said to have caused or procured the prosecution of the plaintiff although they may have urged it; and no recovery could he had agaiinst them even if proof of malice and want of probable cause were satisfactorily established.”

We adopt the ‘opinion quoted, 'and hold accordingly that in disallowing the evidence of legal advice received by Mothershed there was error for which the judgment must be reversed.

Questions raised as to the sufficiency of the evidence we forbear to discuss, since the evidence may be different on another trial.

Reversed and remanded.