Donnelly v. Daggett

14 N.E. 161, 145 Mass. 314, 1887 Mass. LEXIS 80

Opinion

Field, J.

Whether there is probable cause for a prosecution is a question of law only when all the facts which are relevant are either agreed or are undisputed. Sartwell v. Parker, 141 Mass. 405. It is also a question of law whether there is sufficient evidence of a want of probable cause to sustain the burden of proof, which is on the plaintiff. If a person fully lays before counsel learned in the law all the facts which he knows, and all the facts which he believes to be true and can be established by evidence, and he is advised by counsel that they constitute a legal cause for a prosecution, and he in good faith accepts this advice and follows it, he is not liable to an action for malicious prosecution. Olmstead v. Partridge, 16 Gray, 381.

In the case at bar, material facts were in dispute, and it does not appear that a full and correct statement of the facts as known to the defendant was laid before counsel. There was some evidence that the defendant believed that the Providence Furniture Company had wrongfully taken away the goods, because there was evidence that the defendant asked the plaintiff for an assignment of his cause of action against that company; and although this evidence was more directly pertinent to the question of malice, we cannot say that it had no tendency to show a want of probable cause. Mitchell v. Wall, 111 Mass. 492. Bobsin v. Kingsbury, 138 Mass. 538. Krulevitz v. Eastern Railroad, 140 Mass. 573. Moyle v. Brake, 141 Mass. 238.

Exceptions overruled.