DocketNumber: Appeal, 71
Judges: Keller, Cunningham, Baldrige, Stadtpeld, Parker, Rhodes, Hirt
Filed Date: 4/14/1939
Status: Precedential
Modified Date: 10/19/2024
Argued April 14, 1939. This action for malicious prosecution has been tried three times in the court below and once before appealed to this court.
In the former appeal, reported in
The third trial resulted in a verdict for $400 in favor of the plaintiff. Upon the present appeal by the company from the judgment entered on that verdict, the assignments relate solely to the refusal by the trial judge of appellant's point for binding instructions and the subsequent denial by the court below of its motion for judgment n.o.v.
In the first place, appellant contends that the evidence at the trial with which we are now concerned differs materially from that considered on the former *Page 149 appeal, and establishes probable cause for the prosecution as a matter of law for declaration by the court.
The controlling principles on this phase of the case were announced by the present Chief Justice in Taylor v. AmericanInternational Shipbuilding Corp.,
In this trial, as at the former, it was admitted that Hubert failed, when he left appellant's employ at the end of August 1932, to turn over to it approximately $159 of premiums he had collected. Appellant concedes that at the former trial Hubert's testimony, if believed, showed an agreement with Harvey S. Fouse, the manager of its Pittsburgh office, to the effect that Hubert was to retain the $159 to be applied by him against renewal commissions of approximately $15 per month to which he would be entitled during the ensuing year.
Appellant now contends the evidence on this last trial shows that if any agreement to that effect was made it was made with a Miss Carrie (now Mrs. English), the cashier and bookkeeper in the Pittsburgh office, without any authority on her part, and wholly without the knowledge and consent of Fouse.
A careful review of the record of the last trial, however, discloses testimony from which a jury could reasonably find that Fouse knew of the agreement whereby Hubert was authorized to retain the $159, and gave his assent thereto at the time it was made.
Hubert testified that when he made the agreement with Miss Carrie for the retention of the $159 against *Page 150 his future renewal commissions, Fouse was present. His testimony on that subject reads: "Q. Was Mr. Fouse there when you explained that? A. Yes. Q. What did he say? A. He didn't say anything. He looked over to her (Miss Carrie) and nodded his head that it was all right." Later, he thus amplified his version of what took place when he had his conversation with the bookkeeper relative to retaining the $159: "Q. Did you have that same conversation or did you not, with Mr. Fouse? A. Mr. Fouse was there and Miss Carrie looked at him and he nodded it was all right, like you do in a conversation, he nodded it was all right. . . . . . . Q. Did you hear him say anything? A. When I had the conversation with her he was writing on his desk and Miss Carrie looked over as if to say, `Is it all right?' and he nodded his head it was all right and walked away."
Actions may frequently speak as loud, if not louder, than words. Hubert's testimony, if believed, would sustain a finding that when Fouse instituted the criminal proceeding he knew full well that Hubert had not embezzled the money in question but had been authorized to retain it for a legitimate purpose, i.e., knew there was no ground or cause whatever for a criminal prosecution. The positive contradictions of Hubert's testimony by Fouse and the bookkeeper raised an issue of fact which was for the jury.
"But where material facts are in controversy, the question is a mixed one and it becomes the duty of the jury, under proper instructions from the court as to what will justify a criminal prosecution, to say whether the plaintiff in the civil action has shown want of probable cause upon the part of the defendant":Heisey et ux. v. Vansant,
On the assumption that "plaintiff's own case showed reasonable cause for [the] prosecution," counsel for appellant place emphasis in their brief upon the principle that where probable cause is shown motive is immaterial.
There can be no question about the rules of law applicable to this case. They were thus stated by our Supreme Court inMcClafferty v. Philp,
The trouble with appellant's argument upon this branch of the case is that the assumption upon which it is based is not supported by the testimony.
Finally, appellant relies upon advice of counsel as a complete legal defense to the action. The record shows Fouse consulted Charles P. Lewis, Esq., who, upon such facts as were disclosed to him, advised Fouse the case was a proper one for criminal prosecution. Fouse also stated he had general instructions from the company to prosecute any person who "took money," and that he so informed counsel. Lewis testified Fouse consulted him with relation to the state of Hubert's accounts, showed him the papers, and informed him of the company's general order to prosecute "any agent that was short in his account." His further statement was: "I advised him the facts he showed to me and the papers he showed to me would justify prosecution. . . . . ." *Page 152
This testimony covers substantially everything disclosed upon the record concerning the defense of advice of counsel. The function of such testimony was defined in Altman v. StandardRefrigerator Co., Inc.,
Moreover, this defense has well defined limitations; they were thus indicated in the recent case of Groda v. American StoresCompany,
If the jury accepted Hubert's testimony relative to an agreement under which he retained the money, and the verdict indicates they did, they would naturally and properly conclude Fouse had not "made a full and fair disclosure of the facts to counsel."
Our examination of this record has convinced us that *Page 153 the conflicting testimony thereon appearing raised issues of fact upon every vital question involved which were necessarily for the jury. No complaint is made of the manner in which they were submitted to that tribunal.
Judgment affirmed.
Groda v. American Stores Company ( 1934 )
Altman v. Standard Refrig. Co., Inc. ( 1934 )
Heisey Et Ux. v. Vansant ( 1936 )
Payne v. East Liberty Spear Co. ( 1938 )
Hubert v. the Alta Life Ins. Co. ( 1937 )
Randall v. Fenton Storage Co. ( 1934 )
Taylor v. American International Shipbuilding Corp. ( 1922 )