Boyd v. Mendenhall , 53 Minn. 274 ( 1893 )

Gilfillan, O. J.

Action for malicious prosecution. At the trial the action was withdrawn as to the Motor Line Improvement ■Company, originally a defendant, and the trial proceeded as to the defendants Mendenhall and Hartley, and after the evidence was all in the court dismissed the action as to them. The facts necessary to consider are brief. The Motor Line Improvement Company, a corporation doing business in Duluth, owned a section of land (36) lying within the corporate limits of that city, on which there was standing timber, including some cedar. Hartley was the president of the company and Mendenhall & Hoopes its agents, with authority to sell the timber, and they, or subordinates in their office, having like authority, sold the cedar timber, or “stumpage,” as it is called, on the east half of the two easterly quarters of the section to plaintiff’s firm, Boyd & Wilbur, and thereupon plaintiff, with several men, went upon the land to cut the cedar timber, and was cutting and hauling it out, when arrested, as hereafter stated. While so cutting, a Mr. Howard met the defendant Hartley upon the street in Duluth, and told him there were some men cutting cedar on the section. As they stood talking together Mendenhall came up, and Howard repeated to him what he had told Hartley, and then, on the suggestion of Mendenhall, he (Hartley) started to make a criminal complaint against the men doing the cutting, not knowing who they were, nor what were their names. He went to the city attorney, whose business it was to conduct proceedings before the municipal court for punishment of crimes committed within the limits of the city, and requested him to draw a complaint, telling him what Howard had said, and also, as was the fact, that Mendenhall had told him no one had a permit to cut the cedar. The complaint was made out, sworn to by Hartley, a warrant issued, and plaintiff and the men working with him arrested, and taken to the police ■office, and after several hours’ detention, it being ascertained upon inquiry that they had a permit to cut the cedar, they were released, and there was no further prosecution. It appears, or at least it was conceded on the argument, that the place where defendants stood in the conversation with Howard was not more than 100 feet from the office of the improvement company and of Mendenhall & Hoopes, its agents, wdio, or whose subordinates, had sold the cedar timber to Boyd & Wilbur. It must be presumed that by going to that office and inquiring the defendants would have learned that a permit had been given. They knew there were those employed in the office who had authority to issue a permit, and no excuse is suggested for failure to make such inquiry. The circumstances of the cutting and hauling as stated to them by Howard, it being-done openly and without any attempt at concealment, ought to have suggested to them to make such inquiry at least as lay right at their hands, before proceeding to the extreme measure of beginning- a criminal prosecution.

There are in the books many definitions of probable cause to institute a criminal prosecution. A very concise one is given in Munns v. Dupont, 3 Wash. C. C. 31, and quoted and approved by this court in Cole v. Curtis, 16 Minn. 182, (Gil. 161,) as follows: “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 with which he is charged.”

What facts and circumstances amount to probable cause is a question of law; whether they exist in the case is a question of fact. As to what facts and circumstances existed in this case there is no dispute, so that whether there was probable cause was to be determined by the court. The facts were the information given defendants by Howard that there were men cutting and hauling off the cedar, the fact that Mendenhall & Hoopes and subordinates in their office had authority to grant permits, which the defendants must be presumed to have known, and that without excuse for omitting it defendants made no inquiry there. To make inquiry at the office was so easy to do that no cautious man having any regard for the rights of others would have been warranted, without such inquiry, in jumping to the conclusion that the men mentioned by Howard were committing a criminal offense. There being- no reason, of difficulty or otherwise, why they should not have made the inquiry, it was their duty to make it, and they are to be charged on the question of probable cause with what they would have learned had they made it, — presumably the fact that a permit had been issued.

Advice of counsel will protect one in bringing a criminal prosecution only when given after a full statement of the facts and circumstances known to him, or of which he has been informed. Hartley made no such full statement to the city attorney. He did not inform that officer that there were others than himself and Mendenhall who had authority to issue permits, and that no inquiry had been made to ascertain if they had issued a permit. It is apparent from the testimony of the city attorney what effect that information would probably have had on the advice given, for he says: “When he said it was being hauled out, and in large quantities, I suggested to him that it seemed as if they must have some permit from somebody.”

The case ought to have been left to the jury.

Order reversed.

Vanderburgh, J., absent.

(Opinion published 55 N. W. Rep. 45.)