Hart, J.,
(after stating'the facts). It is first contended by counsel for appellant that the undisputed evidence shows that the defendant J. H. Laster had provable cause to institute the prosecution against Bragg and that the court erred in not so decreeing, as a matter of law. In the case of Hitson v. Sims, 69 Ark. 439, the court, speaking through Mr. Justice Battle, in discussing an instruction on probable cause, said:
“In cases like this, a probable cause is such a state of facts known to the prosecutor, or such information received by him from sources entitled to credit, as would induce a man of ordinary caution and prudence to believe, and did induce the prosecutor to believe, that the accused was guilty of the crime alleged, and thereby caused the prosecution. Foster v. Pitts, 63 Ark. 387. The question in this case was not whether a prudent man would have declined, but whether all of the circumstances and facts in appellant’s mind, and known to him, or made known to him by creditable persons, before he instituted the prosecution, were sufficient to cause a person of ordinary caution to believe, and did cause him to believe, that the appellee was guilty of the crime charged. The two questions are different. What might be sufficient evidence to convict of a malicious prosecution without probable cause according to one test might not according to the other.”
In the case of L. B. Price Merc. Co. v. Cuilla, 100 Ark. 316, the court held:
“Where one lays all the facts in his possession before the public prosecutor, or before counsel learned in the law, and acts upon the advice of counsel in instituting a prosecution, this is conclusive evidence of the existence of probable cause, and is a complete defense to an action for malicious prosecution.”-
In the application of these principles of law to the facts in the instant case, we think the court erred in not directing a verdict for the defendant, J. H. Laster, in the action for malicious prosecution. It may be true, as insisted by counsel for plaintiff, that Bragg was not guilty of the crime of larceny, and that the prosecution should have been under section 2011, Kirby’s Digest, which makes it a crime to sell or dispose of property on which a landlord’s lien exists, provided such sale be made with the intention to defeat the holder of such lien in the collection of the debt secured by the lien. But even so, we think that under the facts of this case the court erred in not directing a verdict for the defendant. As we have already seen, thé general rule is that where a party lays all the facts before counsel before' beginning a prosecution and acts bona fide upon the opinion given by such counsel, though that opinion is erroneous and unwarranted, he is not liable in an action for malicious prosecution. In the instant case the undisputed evidence shows that the defendant J. H. Laster made a fair statement of all the facts in the case to counsel and acted upon the advice given upon such statement. He not only testified to this fact himself but is corroborated by the deputy prosecuting attorney. There is nothing in the evidence which affects the integrity of Laster’s conduct in the matter. The undisputed evidence shows that he acted in good faith, under the advice of counsel. It appears both from the testimony of the deputy prosecuting attorney and the defendant himself that the defendant made a fair and full disclosure of all the facts of the case and acted throughout in good faith upon the advice of counsel. The defendant testified that under the facts which were in his possession and which he related to Judge Yaughan and the deputy prosecuting attorney he believed Bragg to be guilty, and, acting upon that belief, upon the advice of counsel, he instituted the prosecution against Bragg.
There is no fact or circumstance adduced in evidence tending to contradict this. J. H. Laster was not present when the examination was held before Justice Sanders, and satisfactorily accounted for his absence. The proceedings there amounted to a voluntary dismissal of the charge because of his absence. Laster had no control over the case or the actions of the prosecuting attorney or the justice of the peace, who had jurisdiction of the case. The discharge of Bragg was not attended by any facts or circumstances involving the conduct of Laster which in themselves indicate a want of probable cause for the prosecution. In such cases the question of probable cause becomes one of law and tbe defendant in an •action for malicious prosecution will be protected.
The record shows that the case has been fully developed and there is no probability of any other testimony being obtained. Therefore, no useful purpose can be served by remanding the cause for malicious prosecution for a new trial. For the error in not directing a verdict for the defendant the judgment will be reversed and the plaintiff’s cause of action dismissed.
On the action for slander, but little need be said. It is first insisted by counsel for defendant that the court erred in permitting the plaintiff to sue J. H. Laster' and Chas. Laster jointly for slander. Under our rules of practice, we can not consider that question because it is raised here for the first time. The record shows that no objection was made in the Court below to joining both defendants in the action for slander, nor was an objection made to joining the action for malicious prosecution and that for slander. In such cases the defendant under our settled rules of practice will be deemed to have waived any objection that he might legally have to such proceedings, and can not raise them on appeal for the first time. This rule has been in force for many years and has been so uniformly followed that a citation of authorities to support it is unnecessary.
The allegation in the complaint is that the defendant Chas. Laster spoke to L. A. Schwartz of plaintiff the following words:
11 That he is the damndest thief in the county and we are going to make an example of him.” The testimony offered upon the part of plaintiff but denied by defendant was that he said to Schwartz of Bragg: ‘ ‘ That he was a damn thief and that he would lose the'rent to get to prosecute him.” ■
This was the only evidence tending to prove the utterance of slanderous words by Chas. Laster. It is insisted by counsel for defendant that there is a substantial variance between the words proved and those alleged in the complaint. Therefore, they contend that under the rule laid down in Miller v. Nuckolls, 77 Ark. 64, where it is said:
“It is not sufficient to prove that the defendant made the same charge against the plaintiff in words substantially different from those alleged, even though they may be of equivalent and similar import,” the defendant should have had the benefit of a peremptory instruction.
The rule is thus stated in Townsend on Slander, section 365:
“The plaintiff need not prove all the words laid but he must prove einough of them to sustain the action. It is sufficient if the gravamen of the charge as laid is proved, and unless the additional words qualify the meaning of those proved so as to render the words proved not actionable, the proof is sufficient. It is necessary for the plaintiff to prove some of the words precisely as charged, but not all of them, if those proved are in themselves slanderous; but he will not be permitted to prove the substance of them in lieu of the precise words.”
Free access — add to your briefcase to read the full text and ask questions with AI
Hart, J.,
(after stating'the facts). It is first contended by counsel for appellant that the undisputed evidence shows that the defendant J. H. Laster had provable cause to institute the prosecution against Bragg and that the court erred in not so decreeing, as a matter of law. In the case of Hitson v. Sims, 69 Ark. 439, the court, speaking through Mr. Justice Battle, in discussing an instruction on probable cause, said:
“In cases like this, a probable cause is such a state of facts known to the prosecutor, or such information received by him from sources entitled to credit, as would induce a man of ordinary caution and prudence to believe, and did induce the prosecutor to believe, that the accused was guilty of the crime alleged, and thereby caused the prosecution. Foster v. Pitts, 63 Ark. 387. The question in this case was not whether a prudent man would have declined, but whether all of the circumstances and facts in appellant’s mind, and known to him, or made known to him by creditable persons, before he instituted the prosecution, were sufficient to cause a person of ordinary caution to believe, and did cause him to believe, that the appellee was guilty of the crime charged. The two questions are different. What might be sufficient evidence to convict of a malicious prosecution without probable cause according to one test might not according to the other.”
In the case of L. B. Price Merc. Co. v. Cuilla, 100 Ark. 316, the court held:
“Where one lays all the facts in his possession before the public prosecutor, or before counsel learned in the law, and acts upon the advice of counsel in instituting a prosecution, this is conclusive evidence of the existence of probable cause, and is a complete defense to an action for malicious prosecution.”-
In the application of these principles of law to the facts in the instant case, we think the court erred in not directing a verdict for the defendant, J. H. Laster, in the action for malicious prosecution. It may be true, as insisted by counsel for plaintiff, that Bragg was not guilty of the crime of larceny, and that the prosecution should have been under section 2011, Kirby’s Digest, which makes it a crime to sell or dispose of property on which a landlord’s lien exists, provided such sale be made with the intention to defeat the holder of such lien in the collection of the debt secured by the lien. But even so, we think that under the facts of this case the court erred in not directing a verdict for the defendant. As we have already seen, thé general rule is that where a party lays all the facts before counsel before' beginning a prosecution and acts bona fide upon the opinion given by such counsel, though that opinion is erroneous and unwarranted, he is not liable in an action for malicious prosecution. In the instant case the undisputed evidence shows that the defendant J. H. Laster made a fair statement of all the facts in the case to counsel and acted upon the advice given upon such statement. He not only testified to this fact himself but is corroborated by the deputy prosecuting attorney. There is nothing in the evidence which affects the integrity of Laster’s conduct in the matter. The undisputed evidence shows that he acted in good faith, under the advice of counsel. It appears both from the testimony of the deputy prosecuting attorney and the defendant himself that the defendant made a fair and full disclosure of all the facts of the case and acted throughout in good faith upon the advice of counsel. The defendant testified that under the facts which were in his possession and which he related to Judge Yaughan and the deputy prosecuting attorney he believed Bragg to be guilty, and, acting upon that belief, upon the advice of counsel, he instituted the prosecution against Bragg.
There is no fact or circumstance adduced in evidence tending to contradict this. J. H. Laster was not present when the examination was held before Justice Sanders, and satisfactorily accounted for his absence. The proceedings there amounted to a voluntary dismissal of the charge because of his absence. Laster had no control over the case or the actions of the prosecuting attorney or the justice of the peace, who had jurisdiction of the case. The discharge of Bragg was not attended by any facts or circumstances involving the conduct of Laster which in themselves indicate a want of probable cause for the prosecution. In such cases the question of probable cause becomes one of law and tbe defendant in an •action for malicious prosecution will be protected.
The record shows that the case has been fully developed and there is no probability of any other testimony being obtained. Therefore, no useful purpose can be served by remanding the cause for malicious prosecution for a new trial. For the error in not directing a verdict for the defendant the judgment will be reversed and the plaintiff’s cause of action dismissed.
On the action for slander, but little need be said. It is first insisted by counsel for defendant that the court erred in permitting the plaintiff to sue J. H. Laster' and Chas. Laster jointly for slander. Under our rules of practice, we can not consider that question because it is raised here for the first time. The record shows that no objection was made in the Court below to joining both defendants in the action for slander, nor was an objection made to joining the action for malicious prosecution and that for slander. In such cases the defendant under our settled rules of practice will be deemed to have waived any objection that he might legally have to such proceedings, and can not raise them on appeal for the first time. This rule has been in force for many years and has been so uniformly followed that a citation of authorities to support it is unnecessary.
The allegation in the complaint is that the defendant Chas. Laster spoke to L. A. Schwartz of plaintiff the following words:
11 That he is the damndest thief in the county and we are going to make an example of him.” The testimony offered upon the part of plaintiff but denied by defendant was that he said to Schwartz of Bragg: ‘ ‘ That he was a damn thief and that he would lose the'rent to get to prosecute him.” ■
This was the only evidence tending to prove the utterance of slanderous words by Chas. Laster. It is insisted by counsel for defendant that there is a substantial variance between the words proved and those alleged in the complaint. Therefore, they contend that under the rule laid down in Miller v. Nuckolls, 77 Ark. 64, where it is said:
“It is not sufficient to prove that the defendant made the same charge against the plaintiff in words substantially different from those alleged, even though they may be of equivalent and similar import,” the defendant should have had the benefit of a peremptory instruction.
The rule is thus stated in Townsend on Slander, section 365:
“The plaintiff need not prove all the words laid but he must prove einough of them to sustain the action. It is sufficient if the gravamen of the charge as laid is proved, and unless the additional words qualify the meaning of those proved so as to render the words proved not actionable, the proof is sufficient. It is necessary for the plaintiff to prove some of the words precisely as charged, but not all of them, if those proved are in themselves slanderous; but he will not be permitted to prove the substance of them in lieu of the precise words.”
Thus it will be seen the rule is, while it is not sufficient to prove words of a similar import merely, and it must be proved that the defendant used substantially the same words as charged, yet a variance in the mere form of expression is not material. The word “thief” is the actionable one in the present case because, unexplained, it amounts to a charge that the plaintiff had been guilty of larceny, which is an infamous crime. Gaines v. Belding, 56 Ark. 100.
■ Hence, it will be seen that while the exact words charged in the complaint were not proved, the words proved are substantially proved as laid. Both the words charged and the words proved impute the crime of larceny. The meaning of the rule above announced seems to be that if the words charged to have been spoken are proved but with the omission or addition of words not at all varying or affecting their sense the variance will not be regarded as material. While it is not necessary under the rule to prove as laid, all the words which are alleged to have been spoken by the defendant, yet so much of them must "be proved as is sufficient to sustain the cause of action. As we have already seen, the actionable word in the instant case is the word “thief,’’ because it imputes the crime of larceny. The words accompanying it were merely descriptive and in the application of the rule to the facts of this case we conclude that the slander proved substantially corresponded with the allegation of the complaint, and there was no variance.
This branch of the case was submitted to the jury under proper instructions of the court, and the judgment will be affirmed.