Malicious Prosecution. In an action by a boy for malicious prosecution in causing the arrest of the plaintiff upon a charge of larceny of a horse, if on the evidence it can be found that the horse was taken from the defendant's stable by the plaintiff's younger brother, who was acting under an honest claim of right in obedience to an order which he believed to have been given to him rightfully by his father, that the defendant ought to have known that this was so and to have seen that, if any crime was committed, the father and not the son was the guilty person, and that the defendant, without making any investigation of the grounds on which the boy who took the horse was acting, believing the plaintiff to be such boy, caused his immediate prosecution on a charge of larceny, and if the defendant on his cross-examination testifies that he wanted his horse or an equivalent and that he wanted the horse and would have taken money, there is evidence for the jury that the defendant was actuated by malice and that he acted without any honest or well grounded belief that the person whom he intended to prosecute was guilty of the alleged crime.
If, at the trial of an action for malicious prosecution, the presiding judge instructs the jury that if they find that the defendant instituted the prosecution of the plaintiff from malice they should return a verdict for the plaintiff, without also plainly instructing them that the plaintiff cannot recover unless the absence of probable cause for the prosecution also is shown, and thereupon the jury return a verdict for the plaintiff, an exception by the defendant will be sustained, because the jury may have returned their verdict for the plaintiff on the ground of the defendant's malice alone without finding the absence of probable cause.
SHELDON, J.
The plaintiff had the burden of showing that the prosecution against him was instigated by the defendant both maliciously and without probable cause. The jury could have inferred the existence of malice from the absence of probable cause; but the latter must be affirmatively shown and cannot be inferred from the existence of malice. Parker v. Farley, 10 Cush. 279, 281. Stone v. Crocker, 24 Pick. 81, 84. Wilder v. Holden, 24 Pick. 8, 11. These fundamental principles are not disputed; but the defendant contends that there was not sufficient evidence to hold him and that the jury were not properly instructed at the trial.
1. There was evidence for the jury of the absence of probable cause. This issue becomes a question of law for the court only when the facts bearing upon it are not in dispute. Casavan v. Sage, 201 Mass. 547. That was not the case here. The circumstances of the alleged larceny, as it is contended that they were reported to the defendant, did not exclude the hypothesis that the plaintiff's younger brother, in taking the horse from the defendant's stable, was acting under an honest claim of right in obedience to an order which he believed to have been rightfully given to him by his father. The jury could find, not only that this was the case, but that the defendant ought to have known it to be so, and to have seen that if the crime had been committed at all it was the father and not the son who was the guilty person. The defendant's immediate prosecution of the son without any precedent investigation of the grounds or reasons on which the latter had acted might be taken to indicate both that the defendant was actuated by malice and that he acted without any honest or well grounded belief that the person whom he intended to prosecute was guilty of the alleged crime. The defendant's own testimony on cross-examination could be found to support this view, — that he wanted the horse or an equivalent, that he wanted the horse and would have taken the money. The issues were for the jury.
2. The tenth request was properly refused. There was no evidence that the defendant had acted under the advice of counsel. It could be found that he did not honestly state all the facts that had come to his knowledge either to the deputy chief of police or to the clerk of the police court, and did not leave it to them to act on their own judgment and responsibility, and that neither of them advised him to make a criminal prosecution. On these findings, the case of Burnham v. Collateral Loan Co. 179 Mass. 268, gives him no comfort.
3. But we are apprehensive that the jury may have been misled by what was said in the charge to the jury. After giving instructions both as to probable cause and as to malice, and after having told the jury that the law would not protect the defendant if he had acted, though not from "black-hearted revenge," yet from "the desire to accomplish something . . . based upon sinister and bad motives and reasons," the judge said to them: "What was the motive which actuated him? . . . Was it love of justice? Was it love of self? If it was for justice on the facts of this case there ought to be a verdict for the defendant. If it was love of self and he set this in motion because he had a bad and wicked heart toward people in general situated as this boy was, there should be a verdict for the plaintiff." This was a clear and plain direction to find for the plaintiff if the jury should find that the defendant had instituted the prosecution from malice. It is the winding up of the instructions upon the question of liability, and it had not been preceded by any equally clear and distinct statement that the plaintiff could not recover unless the absence of probable cause also was shown. As there was conflicting evidence, it may be that the jury rested their verdict entirely upon a finding of malice and either did not pass upon the issue of probable cause or found that question in favor of the defendant. Accordingly there must be a new trial.
We have not deemed it necessary to discuss most of the defendant's requests for instructions because they have not been specifically argued. What has been said covers all the material contentions that have been made. We find no other error than what has been stated.
Exceptions sustained.