Opinion
January 8, 1952 —
February 5, 1952.
APPEAL from a judgment of the circuit court for Rock county: ARTHUR W. KOPP, Circuit Judge, Presiding. Affirmed.
For the appellant there was a brief by Fisher Fisher of Janesville, and oral argument by Cleland P. Fisher.
For the respondent there was a brief by Edward H. Borgelt and Richard S. Gibbs, both of Milwaukee, and John C. Wickhem of Janesville, and oral argument by Mr. Gibbs.
An action for damages for malicious prosecution begun October 10, 1948, by John Elmer against the Chicago North Western Railway Company, a corporation. There was a directed verdict in favor of the defendant March 1, 1951. Plaintiff appeals.
The complaint alleges that the plaintiff was unlawfully and maliciously charged with the crime of larceny and prosecuted therefor without probable cause. The answer of the defendant alleges probable cause; that the company's agent, in signing the complaint, acted upon the advice of a duly qualified practicing attorney, the district attorney of Rock county, Robert D. Daniel, after having made a full and fair disclosure of all the facts pertinent to said charge within his knowledge or information; "that he was thereupon advised by the said district attorney that it appeared that an offense had been committed and that there was reasonable and probable cause to believe that the plaintiff, John Elmer, was guilty thereof."
It appears that early in the morning of June 27, 1947, the plaintiff was seen by Officer Whaley of the Evansville police department loading rails onto his car, that this was at either 2:20 a.m. or 4 a.m., while it was dark, and the officer, with his spotlight, observed what was transpiring. When questioned by the officer, the plaintiff said first, that he had bought the rails from Brunsell Fellows, coal dealers at Evansville, whose yards adjoined the North Western right of way; second, that he had bought them from the North Western Railway; and again, that if the officer and chief of police wanted to know anything more about them they should ask the section foreman. The incident was reported to the chief of police at Evansville, but no action was taken at that time. On October 1, 1947, one Fred M. Schleicher, a detective employed by the defendant, who was investigating the losses of rails from the defendant's premises, came to Evansville and there learned from the chief of police that one of the officers of the police department had made the report of seeing Elmer load rails onto his car early in the morning of June 27, 1947. The detective was shown the police-department report. He then talked to the crossing watchmen, each of whom told him about the plaintiff's taking rails and said that they were taken in each instance from the Chicago North Western stock pile. Later in the day the detective talked with the plaintiff about the rails, but the plaintiff made no response to his questions. The detective suggested to the plaintiff that he (Elmer) had better go home and think about it, and that he would meet him the next morning at about 8 o'clock in the Evansville police department. The plaintiff did not keep the appointment. The detective went to Janesville and gave the evidence he had gathered to the district attorney. The testimony of the district attorney confirms this conference and shows that the detective told him of having talked to several witnesses who gave him information about having seen plaintiff take the rails. He also told him that Elmer had made some claim to having purchased the rails from the Chicago North Western Railway, but that no effort had been made through the proper channels to purchase those rails. At the conclusion of this conference the district attorney advised the railway-company detective that it was proper to issue a complaint and warrant charging larceny of rails. The district attorney then prepared a complaint and had Mr. Schleicher sign it. After the warrant was issued, the detective took it to the chief of police at Evansville. When the warrant was served upon the plaintiff, he "made some remark to the chief and took out his billfold, taking from it $60 in bills and told him to take that as he thought it would take care of the matter." The chief then told Elmer that he was not there to accept any money for the railroad. The plaintiff did not at any time make any claim to the chief or the detective that the rails were his property. Later there was a preliminary examination, as appears from the official docket of the municipal court of Rock county in the case of State of Wisconsin v. Jack Elmer. It also appears, among other things, that there were continuances of the case, but that on October 21st, the preliminary hearing was held with witnesses sworn, and the court found "that an offense has been committed, and that there is reasonable and probable cause to believe defendant guilty thereof, . . ." The plaintiff was bound over for trial. The matter was later dismissed upon motion of the district attorney because of insufficient evidence.
Upon the trial of this action, after the introduction of the evidence summarized above, defendant moved for a directed verdict. This motion was granted by the trial court, and judgment of dismissal was entered.
The immediate issue to be considered here is such that it becomes unnecessary to discuss in detail the evidence relating to the guilt or innocence of the plaintiff. The question is one of the existence of "probable cause." Did the defendant's agent have knowledge of such a state of facts and circumstances as to excite the belief in the reasonable mind acting on such facts and circumstances that the plaintiff is guilty of the crime of which he is suspected? Probable cause, which constitutes a defense to an action for malicious prosecution, depends upon what the prosecuting party knew or ought to have known at the time of instituting the criminal proceeding. As set forth in the statement of facts, it appeared that the district attorney upon sufficient evidence advised the issuing of the complaint, and because of that evidence he informed the railway detective that it was a case where the warrant should issue. The record shows that the detective made a full and complete statement of the facts within his knowledge concerning the whole affair to the district attorney before he signed the criminal complaint. It follows that the proceeding, as far as the defendant is concerned, was based upon probable cause as a matter of law.
"The term `full and fair statement of all the facts' does not mean all the facts discoverable, but all the facts within the knowledge of the person making the statement. If he knows facts enough, either personally or by credible information, which, when fairly and fully stated to reputable counsel for the purpose of obtaining legal guidance, results in advice which is honestly followed in commencing the criminal proceedings, that is sufficient. That was distinctly recognized in the most recent decision of this court on the subject, Brinsley v. Schulz, 124 Wis. 426, 102 N.W. 918. There it was said: `One of the most efficient ways of negativing a prima facie showing in that regard and establishing affirmatively probable cause is to prove that the prosecution was commenced under the advice of counsel, . . . after a full statement to him of all the facts known to the defendant. It makes no difference in such a case whether the facts supposed to exist do so or not; if there is an honest belief in such existence and the supposed facts are fully and fairly stated to counsel to obtain proper guidance in the matter, and upon his advice as to the sufficiency of the same the prosecution is in good faith commenced, that is enough. Such circumstances when fully established show, as a matter of law, absence of malice and presence of probable cause, precluding any liability for malicious prosecution.'" King v. Apple River Power Co. 131 Wis. 575, 581, 111 N.W. 668; Topolewski v. Plankinton Packing Co. 143 Wis. 52, 126 N.W. 554; Smith v. Federal Rubber Co. 170 Wis. 497, 175 N.W. 808.
The trial court was properly convinced that the record the case clearly established that Schleicher made a full and fair statement of all the facts or information within his knowledge to the district attorney, that he believed that the plaintiff was guilty, and that he was advised by the district attorney that the facts constituted good legal ground for commencing criminal prosecution against the plaintiff, and that he in good faith followed such advice. Some of the argument by the plaintiff is based upon the subsequent dismissal of the case and an impression that the evidence offered by the plaintiff created a jury issue. However, malice is lacking, and probable cause existed. There is no reason advanced for the claim of any actual or implied malice on the part of the defendant actuating its prosecution of the plaintiff, and the plaintiff's admitted effort to compromise the matter by paying a large sum to "take care of the matter" sufficiently answers that contention by the plaintiff. Collins v. State, 115 Wis. 596, 92 N.W. 266.
We are of the opinion that the trial court properly ruled that the defense of advice of counsel after a full and fair statement of all the facts within the knowledge of the person making the complaint was established as a matter of law. Upon this state of the case it was proper to direct a verdict.
By the Court. — Judgment affirmed.