Opinion
(Filed 15 December, 1905.)
Malicious Prosecution — Probable Cause — Question for Court — Evidence — Attachment.
1. In an action for malicious prosecution in suing out an attachment, justifiable probable cause is a belief by the attaching creditor, in the existence of facts essential to the prosecution of his attachment founded upon such circumstances as supposing him to be a man of ordinary caution, prudence and judgment, were sufficient to induce such belief.
2. When the facts are admitted, it is the duty of the court to declare, as a question of law, whether there is probable cause.
3. Those facts and circumstances alone which were known to defendant at the time of the affidavit upon which the warrant of attachment was based are to be considered in determining the question whether he had probable cause.
4. Evidence that plaintiff was indebted to defendant bank in a large amount which was unsecured and had been running for a long time, and though urged to do so, plaintiff had made no payment thereon; that he had withdrawn his account from the bank; that the bank knew of plaintiff's litigation with his wife and its disastrous effect upon his business and property, plaintiff having informed the bank that he owed $20,000 and had property enough to pay for it, "but he feared such would not be the case long"; that his property was encumbered with mortgages for $5,000 and with an inchoate dower right and a pending claim for alimony for $4,000; that plaintiff had sold nearly all of his personal property, had dismantled and shut down his mill, leased his store for two years, left the entire property uninsured, and had gone to a distant State: Held, that these facts constituted probable cause for attaching plaintiff's property.
5. The fact that the plaintiff owned a large quantity of real estate of large value is not material upon the question of probable cause.
ACTION by J. H. Moore against the First National Bank of Statesville and Geo. H. Brown, heard by Judge Jas. L. Webb and a jury, at the February Term, 1905, of ALEXANDER. (294)
Armfield Turner, R. Z. Linney and Hufman Williams for the plaintiff.
Furches, Coble Nicholson and W. P. Bynum, Jr., for the defendant.
This was an action for damages alleged to have been sustained by reason of suing out an attachment by defendant bank and George H. Brown, its cashier, against plaintiff's property, wrongfully, maliciously and without probable cause. A demurrer to the plaintiff's evidence was sustained by the court and the action dismissed. Plaintiff excepted and appealed. (302)
We are relieved of any extended discussion of the principles of law applicable to this appeal. The learned counsel for plaintiff and defendants agree in that respect. Plaintiff's counsel cite a line of cases decided by this Court which clearly and without any variation settle the law as to the material questions in the case. We are not called upon to express any opinion in regard to the conduct or motives of plaintiff except in so far as they bear upon the state of defendant's mind and the reasonableness of his belief. It may well be, and we do not wish to be understood as intimating any opinion to the contrary, that he was acting in all that he did, in perfect good faith and with honest intentions. It is evident from his testimony that the long and harassing litigation with his wife had, as it was well calculated to do, seriously disturbed his mind and embarrassed his business.
The question is whether the defendant Brown had probable cause to believe that plaintiff was moved by any other than an honest purpose in his conduct. The essential averment to be established before the plaintiff can proceed with this suit is the absence of probable cause for defendant's action. Until he has done this, he cannot call the defendant's motives in question. This is conceded by his counsel. What constitutes probable cause? The answer is given by DANIEL, J., in Cabiness v. Martin, 14 N.C. 454, quoting Judge Washington: "I understand it to be the existence of circumstances and facts, sufficiently strong to excite, in a reasonable mind, suspicion that the person charged with having been guilty was guilty; it is a case of apparent guilt, as contradistinguished (303) from real guilt. It is not essential that there should be positive evidence at the time the action is commenced; but the guilt should be so apparent at that time as would be sufficient ground to induce a rational and prudent man, who duly regards the rights of others as well as his own, to institute a prosecution." Smith v. Deaver, 49 N.C. 513; Jaggard on Torts, 616. "A reasonable or well grounded suspicion of the guilt of the accused, based on circumstances sufficient to justify a reasonable belief thereof in the mind of a cautious and prudent man, is sufficient defense to the action." 19 Am. Eng. Enc. (2 Ed.), 659. Stacey v. Emery, 97 U.S. 642; Ferguson v. Arnow, 142 N.Y. 580.
In Spengler v. Dorry, 56 Va. 380, the action was for malicious prosecution in suing out an attachment. DANIEL, J., referring to Judge Washington's definition in Munns v. Dupont (cited in Cabiness v. Martin, supra), says: "Modifying the definition so as to adapt to such a case as the one before us, we may, I think, properly define justifiable cause, in cases of the kind to be, a belief, by the attaching creditor, in the existence of the facts essential to the prosecution of his attachment founded upon such circumstances as, supposing him to be a man of ordinary caution, prudence and judgment, were sufficient to induce such belief."
It is conceded that when the facts are admitted it is the duty of the court to declare, as a question of law, whether there is probable cause. DANIEL, J., in Swaim v. Stafford, 25 N.C. 289, says: "What is probable cause when the facts are admitted is a pure question of law." The law has been uniformly so held in this State. In Beale v. Roberson, 29 N.C. 280, RUFFIN, C. J., after reviewing the English authorities, in connection with our own, says: "It would seem then, that making a question on this subject must be regarded as an attempt to move fixed things, and cannot be successful either in England or here." He also says that however difficult it may be, it is a question which a judge can deal with better than a jury; as he does with reasonable time, due (304) diligence and legal provocation and the like. Vickers v. Logan, 44 N.C. 394; Jones v. R. R., 125 N.C. 227. In Kirkham v. Coe, 46 N.C. 423, the judge upon the entire evidence instructed the jury that there was not probable cause. In Honeycut v. Freeman, 35 N.C. 320, the Court held as matter of law that there was not probable cause. In this case, His Honor in effect instructed the jury that there was probable cause. There was nothing to be submitted to the jury — the defendant admitted every portion of plaintiff's testimony, material to the inquiry, to be true. In ascertaining whether the defendant had probable cause, we are to consider only those facts which were known to him at the time he sued out the attachment. Those facts and circumstances alone which were known to defendant at the time of the affidavit upon which the warrant of attachment was based are to be considered in determining the question whether he had probable cause. Swain v. Stafford, supra; Beale v. Roberson, supra.
The defendant Brown knew that plaintiff was indebted to the bank in a large amount — that the debt was unsecured and had been running a long time, interest being paid. That, although urged to do so, plaintiff had made no payment whatever on the notes; that he had withdrawn his account from the bank. In this connection the reason given for doing so is not material, the withdrawal deprived the bank of any opportunity of keeping up with his cash transactions, knowing the sources from which he was drawing cash and the disposition made of it. He had a right to withdraw his account, if he saw fit, but when he did so, he was bound to know that the bank would not longer extend him credit. The defendant knew of the litigation with his wife and its effect upon his business and property. In the light of these facts, the letter of 21 May, 1903, informed the defendant of his condition and his apprehensions in regard to the future of his business. The bank was under no obligation to accept his proposition, (305) no matter how sincere and honest he was in making it. The defendant Brown must have known that a conveyance of the property encumbered with two mortgages of $5,000 — a pending claim for alimony pendente lite reasonably anticipated to be not less than $4,000 — secured on the property by a notice of lis pendens — with the right to renew the demand — the property further encumbered with an inchoate dower right — certainly all of these incumbrances rendered the security offered for $20,000 precarious. No prudent person would have loaned so much upon the property with the chances, the almost certainty, of litigation. In this condition of affairs, the defendant Brown goes to Taylorsville, and thence to the mill; he finds that plaintiff has sold very nearly, if not quite, all of his personal property, has dismantled and shut down the mill, leased out the store for two years, left the entire property uninsured, and gone, as his son tells him, to a distant State. It is true that plaintiff's son gives defendant an account of conditions as he understands them, and we take it does so honestly. There is no suggestion of the disposition made of the money for which the property had been sold — his son says because he did not ask. The defendant was not bound to accept the son's explanations of the father's conduct, he could well have concluded that the son himself did not understand the purposes of his father. In this condition of affairs it was certainly the duty of the officers of the bank to take some action looking to the collection of the debt — to have failed in that respect would have subjected them to censure, if not personal liability. No other course than an attachment was open to them. The plaintiff was out of the State, no personal service could be made nor could any injunction have been served on him. The defendant must either have quietly awaited developments and taken the risk of further sales by plaintiff while out of the State, or of his return or of other creditors attaching.
(306) The plaintiff's counsel strongly contend in a well considered brief that the facts which were known to defendant Brown should have assured him that the bank was in no danger of losing the debt; that plaintiff was amply able to pay his debts in full; that he knew why plaintiff had gone to Cincinnati and that he would return on Monday. That while the conditions existing at the time of suing out the warrant might have constituted probable cause for action by some other person, that the same facts did not constitute such cause to justify defendant Brown's action. This is equivalent to saying that Brown swore falsely in his affidavit, that he did not in fact believe that plaintiff was guilty of fraudulent conduct. We are of the opinion that when all of the facts and circumstances known to defendant Brown are taken into consideration, he had probable cause to sue out the warrant. Was there any evidence that in truth he did not honestly believe that to which he swore? But, says the plaintiff, did not plaintiff's son explain his father's absence and when he would return, and did not Brown say that he had the utmost confidence in Dr. Moore — had been his friend and had no ground to take any action? Brown was under no obligation to accept the son's version of his father's conduct, and his action shows that he did not do so. He may not, at the time, have determined upon the course he would pursue to secure the bank's debt. If he had done so, he would hardly have notified the son that he was going to return to Statesville and sue out an attachment. That would not have been the conduct of a prudent man trying to secure a debt of $5,000. It is asked: "Were not the circumstances now relied on as suspicious, explained to the defendants and explained to their satisfaction?" The answer is found in the defendant's action. Again it is asked: "Didn't they say, after hearing the explanations, that they had the utmost confidence in Dr. Moore?" The testimony upon this point is as follows: Mr. Moore says that he told defendant Brown that the property had been sold; that he did not ask him where the money was; told him that the running capital had been practically run out of the business on (307) account of the suit; that they had to increase the capital some way or the mill had to shut down. "Mr. Brown told you he had always been your father's friend in his business? Yes, sir. Let him have this money to be used in conducting his business? Yes, sir, had the utmost confidence in him. And when he told him he was his friend he was? Yes, sir. Said he had the utmost confidence in him."
We do not construe this language as plaintiff does. To our minds it is rather the language of a man more disappointed in the conduct of one to whom he had extended credit because of his confidence and friendship. This language must be interpreted in the light of time, place and circumstances. Here was the cashier of a bank, who had for two years been renewing and increasing a loan to his friend without security to enable him to carry on his business. When he goes to see him for the purpose of securing his debt, the debtor has sold off property of large value, as it afterwards turns out $8,000, shut down the mill, permitted the insurance to expire and gone to a distant State, leaving his son, a young student, just from college, in charge. Certainly his statement that he had trusted and had reposed confidence in plaintiff does not show a state of mind inconsistent with his action taken shortly thereafter. That Brown was anxious about the debt is evident from his actions, as well as his words. Plaintiff was put upon notice that the bank desired payment, and was urgently pressing for payment; that it had rejected his proposition. To take the most favorable view of his conduct, was it not folly on his part to leave the State under the circumstances known to him; was not his entire conduct well calculated to cause his creditors to reasonably apprehend that their debts were in jeopardy. The plaintiff says that the dissolution of the attachment shows an absence of probable cause. Whatever effect such order would have had if made upon the merits, it is not necessary to discuss, because the order was made upon plaintiff's payment (308) of the debt. No other course was open to the court or the defendant bank. The fact that plaintiff returned on Monday following the attachment and paid the debt can not be considered on the question of probable cause, nor can the fact that plaintiff caused the proceeds of the personal property, including the manufactured goods in the mill which he had sold, amounting to $8,000 to be deposited in the bank in Cincinnati to the credit of his nephew, Dr. Payne. "If by his folly or his fraud the plaintiff exposed himself to a well grounded suspicion that he was guilty of the crime of which he was charged, he can not claim that there was not probable cause for the prosecution." 19 Am. Eng. Enc. (2 Ed.), 659. The examination of the cases in our own and other reports shows that the courts have, with practical uniformity, held that when the facts are admitted, as by a demurrer to the evidence, the question of probable cause has been decided as a matter of law. When the testimony is conflicting, the court instructs the jury as to the law, leaving to them to find the truth of the matter by applying the law to the facts as they find them to be. Mr. Justice Hunt, in Stacey v. Emery, supra, says: "The question of malice or good faith is not an element in the case. It is not a question of motive. If the facts and circumstances before the officer are such as to warrant a man of prudence and caution in believing that the offense has been committed, it is sufficient. Whether the officer seized the occasion to do an act which would injure another, or whether he moved reluctantly is quite immaterial."
In Williard v. Holmes, 142 N.Y. 492, Gray, J., in discussing the law in regard to suing out an attachment, says: "It was a process which the statute authorized and which is usual in such cases, and its use subjects this defendant to no unfavorable criticism, if it accompanied the institution of an honest suit." He further says: "The circumstances to sustain this right of action must appear to have been such that no reasonable man could have been influenced thereby to (309) the belief that the plaintiff had unauthorizedly committed the company, whose officer he had been, to a liability which it had not incurred and which was foreign to its chartered purposes. It is our judgment that the facts did not justify the trial court in submitting the case to the jury and that, upon all the evidence, it was error to deny the defendant's motion to dismiss the complaint. The material facts were not in dispute, and whether there was probable cause for the prosecution of the former action became a question of law solely for the court." The law is discussed in the case of Stewart v. Sonneborn, 98 U.S. 187. The authorities are reviewed in an able opinion by Mr. Justice Strong.
The plaintiff strongly urges upon our attention the fact that he owned a large quantity of real estate of large value. In this action we do not perceive that this fact is material upon the question of probable cause. If the defendant had such cause to believe that plaintiff was disposing of his property to defraud his creditors, or had left the State for that purpose, the value of his property was of no moment. He could as easily dispose of a large quantity by conveyance as a small quantity. A very wealthy man, whose conduct is such as to give to his creditors probable cause to sue out an attachment, is in no better position in that respect than a man with small means. That defendant was seriously apprehensive in regard to its debt is shown by the testimony of plaintiff's son. If this were an action for abuse of process by levying the attachment upon property of value largely in excess of the debt or otherwise using the process oppressively, the testimony in respect to the value of the property would be material. R. R. v. Hardware Co., 138 N.C. 174.
Upon a careful examination of the entire record, we find no error in his Honor's judgment.
No error.
(310)