E. W. Godbey, of Decatur, for appellant.
Charge 9 was erroneously given for defendant. 21 C. J. 900; 11 A. E. Ency. L. (2d Ed.) 357; Eberhardt v. Sanger, 51 Wis. 72, 8 N.W. 111; Jefferson County v. Parker, 211 Ala. 289, 100 So. 338; K. P. v. Steele, 107 Tenn. 1, 63 S.W. 1126. Charge 9 is not a correct statement of law. Parisian Co. v. Williams, 203 Ala. 378, 83 So. 122; Watson v. Cain, 171 Ala. 151, 54 So. 610; American Co. v. Pryor, 211 Ala. 114, 99 So. 636. Charges 2, 5, and 6 were due to have been given for plaintiff. Bradford v. Lawrence, 208 Ala. 249, 94 So. 103; Sugar, etc., Co. v. Johnson, 17 Ala. App. 409, 85 So. 871; McLeod v. McLeod, 73 Ala. 42. Plaintiff was due the affirmative charge. Schofield v. Ferrers, 47 Pa. 194, 86 Am. Dec. 532; Johnson v. Ebberts (C. C.) 11 F. 129.
S. A. Lynne, of Decatur, and G. O. Chenault, of Albany, for appellee.
Charge 8, given for defendant, is not subject to criticism. The use of the word "establish" does not impose a greater burden on plaintiff than he was required to bear. Ewing v. Sanford, 21 Ala. 157; Jones v. Monson, 137 Wis. 478, 119 N.W. 179, 129 Am. St. Rep. 1082; Gamble v. Martin (Tex.Civ.App.) 151 S.W. 327; Wistrom v. Redlick Bros., 6 Cal.App. 671, 92 P. 1048; Callan v. Hanson, 86 Iowa, 420, 53 N.W. 283. Charge R, requested by plaintiff, is bad. Whiteneck v. Comm. (Ky.) 55 S.W. 916; Terre Haute T. L. Co. v. Payne, 45 Ind. App. 132, 89 N.E. 413. Charge 9, given for defendant, is a correct statement of law. Ewing v. Sanford, supra; Long v. Rodgers, 19 Ala. 321; McLeod v. McLeod, 73 Ala. 42. Plaintiff was guilty of trespass after warning. Code 1923, § 5660. Defendant submitted all that transpired to her attorney, who advised her in good faith that an offense had been committed and warranted prosecution, and she in good faith acted upon his advice. Hence the plaintiff could not recover. Small v. McGovern, 117 Wis. 608, 94 N.W. 653; Jordan v. A. G. S., 81 Ala. 226, 8 So. 191.
This case having been submitted under Supreme Court rule 46, the opinion of the court was prepared by Mr. Justice SOMERVILLE.
On the undisputed facts of the case, plaintiff was not guilty of trespass after warning, and, as a matter of law, there was no probable cause for his prosecution on such a charge, apart from the advice of counsel. This was, in effect, the plain instruction given to the jury by the trial judge.
On the other hand, there seems to have been no express malice or ill will on the part of the prosecutor, though legal malice ought perhaps to have been inferred from her confessed purpose to use the criminal process to accomplish her purely private design of protecting the premises against plaintiff's unwelcome presence in the house, pending his sister's arrival from Denver. Jordan v. A. G. S. R. R. Co., 81 Ala. 220, 226, 8 So. 191; Lunsford v. Dietrich, 93 Ala. 565, 569, 9 So. 308, 30 Am. St. Rep. 79; Ewing v. Sanford, 21 Ala. 157, 163.
The decisively important issue submitted to the jury was on the effect of the advice of counsel given to defendant on the eve of the prosecution complained of — whether it met the requirements of the law in order to constitute probable cause for instituting the prosecution.
Advice of counsel is not the equivalent of probable cause, and therefore is not a complete defense to the action, unless it is honestly sought and acted on in good faith. Jordan v. A. G. S. R. R. Co., 81 Ala. 220, 227, 8 So. 191; Sandlin v. Anders, 187 Ala. 473, 479, 65 So. 376. As said in McLeod v. McLeod, 73 Ala. 42, 46:
"The advice of counsel obtained mala fide will avail nothing, when it is resorted to as a mere shelter to cover up a previously fixed determination to make the arrest in question."
On this principle refused charge 2, requested by plaintiff, stated a correct proposition of law, applicable to the evidence, and its refusal was prejudicial error. The general instruction that defendant must have acted in good faith in bringing the prosecution does not fairly cover the proposition refused.
Refused charges 43 and 44 are correct propositions of law, but, as framed, they might easily have misled the jury as to the point intended to be emphasized, viz., the measure of proof, and not the fact of proof; and for that reason their refusal was not error.
In order to constitute probable cause not only must the facts known to the prosecutor be sufficient to induce a reasonable man to believe in the guilt of the accused, but they must actually induce such a belief in the mind of the prosecutor. As said in McLeod v. McLeod, 75 Ala. 483, 486:
"The question in such cases is not whether the accused was in fact guilty, but whether the prosecutor, acting in good faith, and on the reasonable appearance of things, entertained the reasonable belief of his guilt."
Charge 9, given for defendant, ignored this essential element of probable cause, and on the authority of Watson v. Cain, 171 Ala. 151, 54 So. 610, the giving of the charge must be held as reversible error. On the same principle, refused charge 6 should have been given for plaintiff.
The criticism of defendant's given charge 8 is that it requires the stated elements of the tort "to be established by the plaintiff." According to lexicographers, "to establish" means to fix firmly or immovably; to put beyond doubt or dispute. The word is therefore, in strictness, inapt if used to state the measure or degree of proof required. It has, however, come into rather common use by judges and law writers in stating the elements of the case to be proved. This language of charge 9 is taken from the opinion of the court in Ewing v. Sanford, 21 Ala. 157, 162; and it has been repeated in Hanchey v. Brunson, 175 Ala. 236, 56 So. 971, Ann. Cas. 1914C, 804, and in Parisian v. Williams, 203 Ala. 378, 382, 83 So. 122.
In the instant case, the court was not explaining the measure of proof, but merely the facts to be proved, and if it was considered as misleading, notwithstanding the correct instructions as to the measure of proof several times repeated in the oral and written charges given, we think the duty was on the objector to ask for an explanatory charge — the refusal of which might have been reversible error.
We think it was prejudicial error to allow the plaintiff to be cross-examined as to his lack of attendance on his father during his last illness — a fact which was wholly irrelevant to the issues, but capable of creating serious prejudice against plaintiff in the minds of the jury.
Other questions need not be considered. For the errors noted the judgment will be reversed and the cause remanded for another trial.
Reversed and remanded.
ANDERSON, C. J., and THOMAS and BROWN, JJ., concur.
On Rehearing.
SOMERVILLE, J.
The complaint avers that the defendant "undertook to drive defendant [meaning plaintiff] away from his own house where the body of his father lay," and "did then and there * * * order defendant to leave said premises, greatly to his humiliation"; and that defendant "did procure said arrest and contrive the plaintiff's shame and humiliation," and caused him "great mental anguish." But there is nothing in all of this that presents any issue as to plaintiff's affection for his deceased father, nor any assertion of mental suffering on that account, nor does the complaint claim damages in that behalf. Hence we must adhere to the conclusion that evidence of plaintiff's social neglect of his father before his death was improperly admitted.
With respect to charge 9, given for defendant, counsel for defendant insist that, since it is framed in the exact language of the opinion in Ewing v. Sanford, 21 Ala. 157, 163, it was necessarily a correct instruction, and was therefore properly given.
The question in that case was whether the trial judge erred in refusing to charge the jury "that, if defendant believed at the time he made the affidavit that the conduct of Sanford, forming such ground of accusation, amounted to the offence charged," they must find for the defendant. An examination of the opinion, in its entirety, shows that the court was dealing with the question of malice and not probable cause, and was defining what state of facts would, in the absence of probable cause, serve to rebut the implication of malice — assuming, as did the refused charge, that the prosecutor acted under an honest belief that the facts showed the guilt of the accused. The opinion was so understood and cited to that conclusion in Lunsford v. Dietrich, 86 Ala. 250, 253, 254, 5 So. 461, 11 Am. St. Rep. 37, and in Sloss-Sheffield, etc., Co. v. O'Neal, 169 Ala. 83, 89, 52 So. 953. So far as we are advised, it has never been cited or approved as a correct definition of probable cause, which would, of itself, constitute a defense.
It is true that this court, as well as many others, has defined probable cause, in the abstract, as:
"Such a state of facts and circumstances as would lead a man of ordinary caution and prudence, acting conscientiously, impartially, reasonably and without prejudice, to believe, on the facts within his knowledge, that the person accused is guilty." Jordan v. A. G. S. R. R. Co., 81 Ala. 220, 226, 8 So. 191, 192; Lunsford v. Dietrich, 93 Ala. 565, 569, 9 So. 308, 30 Am. St. Rep. 79.
But, to make such facts and circumstances available as a defense, the defendant must have himself, in consequence thereof, entertained an actual and honest belief in the guilt of the accused, as the cases cited in our original opinion show.
Had charge 9 omitted the last clause asserting that the conditions predicated would per se protect defendant against liability, it would, though incomplete, have afforded no basis for reversible error.
Finally, we must remind counsel that statements of law, found in judicial opinions, are not always proper for instructions to be given to juries in other cases, and that, indeed, they may be grossly erroneous when so applied. So. Ry. Co. v. Hayes, 198 Ala. 601, 73 So. 945.
For the reasons stated, the application for rehearing will be overruled.
ANDERSON, C. J., and THOMAS and BROWN, JJ., concur.
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