Thomas v. Bush

166 N.W. 894, 200 Mich. 224, 1918 Mich. LEXIS 821

• Court: Michigan Supreme Court
• Decided: March 27, 1918
• Docket: Docket No. 186
• Status: Published

Opinion

Fellows, J.

{after stating the facts). Errors are assigned upon rulings of the trial court during the progress of the trial. As none of the testimony admitted over plaintiff’s objection affects the controlling question, and as no proof offered by him was rejected which could affect it, these assignments of error become unimportant. The controlling question of whether the court properly directed a verdict for the defendant is the only one meriting consideration. '

In an action for malicious prosecution three distinct propositions must be established: (1) The fact of the alleged prosecution and that it terminated in plaintiff’s favor; (2) that defendant had not probable cause; (3) that he acted from malicious motives, Hamilton v. Smith, 39 Mich. 222. Plaintiff has established the first of these propositions. He insists that the third may be inferred from a want of probable cause, and that the question of probable cause was for the jury. There is no claim that defendant instituted the criminal proceedings because of any past differences between him and plaintiff, as it is undisputed that he was not acquainted with plaintiff. The case must turn upon the question of probable cause. It is the settled rule in this State that where the facts are conceded, or are undisputed, the want of probable cause is a question of law to be determined by the court. Gilecki v. Dolemba, 189 Mich. 107; Rogers v. Olds, 117 Mich. 368; Birdsall v. Smith, 158 Mich. 390; Fleckinger v. Taffee, 149 Mich. 678; Huntington v. Gault, 81 Mich. 144.

It is also equally the settled law of the State that in actions for malicious prosecution and false imprisonment, where the prosecuting witness has in good faith fully and fairly stated all the material facts within his knowledge to the prosecuting officer and acted upon his advice, proof of the fact establishes a case of probable cause. Smith v. Tolan, 158 Mich. 89; Rogers v. Olds, supra; Wakely v. Johnson, 115 Mich. 285; Huntington v. Gault, supra. In the last cited case it was said:

“When the- facts are undisputed, want of probable cause is purely a question of law. In this case the facts are undisputed that Gault did place all the facts before the prosecuting attorney, not only by himself, but by disinterested witnesses, and acted upon his opinion. The testimony of Gault and of the prosecuting attorney upon this point is not contradicted, and the question became one, as before said, of law, and the circuit judge should have instructed the jury that the plaintiff had failed to show that there was a want of probable cause to make the complaint. The defense that the prosecution was instituted by advice of counsel was as conclusively established as was the fact that the prosecution was instituted by defendant, or that the prosecution had terminated, and called for like instructions to the jury.”

In the instant case the undisputed testimony of the defendant establishes that defendant fully and fairly stated to the prosecuting attorney all the facts, within his knowledge, surrounding the transaction. The testimony of the defendant and of the prosecuting attorney undisputedly establishes that the prosecuting attorney advised making the complaint, and instructed the justice that the warrant might issue. Not only are these facts established by the undisputed testimony, but there are no inferences or circumstances in any way casting discredit on their testimony, or imputing a want of good faith on the part of either the prosecuting attorney or the defendant. The question, therefore, became one of law for the court. Probable cause was established by testimony introduced by defendant and there was no testimony in the case showing, or tending to show a want of probable cause.

Nor was there any evidence in the case of an abuse of criminal process. Defendant demanded the return of the hose,,as he was advised to do by the prosecuting attorney, but there is no testimony that he went further; no testimony that he extorted or attempted to extort any money from the defendants in the criminal case or any of them; no evidence that he in any way used or attempted to use the warrant to procure a settlement from any of the defendants therein named; no evidence that he even mentioned the warrant to them or any of them. All that he did was to demand a return of the property he and his tenants had bought and paid for, and which he honestly believed belonged to them. If this property belonged to them defendant might undertake to recover it, but had no right to use the criminal process of the court in that undertaking. There is no evidence that he did so. The court was not in error in directing a verdict for defendant.

The judgment is affirmed.

Ostrander, C. J., and Bird, Moore, Steere, Brooke, Stone, and Kuhn, JJ., concurred.