
    No. 656
    REFLEX IGNITION CO. v. WIES
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 5536.
    Decided March 2, 1925
    745. MALICIOUS PROSECUTION—1. If party puts facts of case before counsel, for opinion as to whether or not there exists a probable cause for swearing out warrant, and party swears out such a warrant in accordance with counsel’s advice; that is a complete defense.
    2. Not so if all the facts of the situation are not put before counsel.
   VICKERY, J.

This action was brought by James Wies in the Municipal Court of Cleveland, against the Reflex Ignition Co. for damages resulting from malicious prosecution and incarceration in jail. Judgment was rendered in favor of Wies for $1500.

Error was prosecuted by the Company and it was contended that the judgment should be reversed for the reason that it is against the weight of the evidence, that it is against the law for the reason as alleged that the company, before they swore out the warrant for the arrest of Wies, advice of counsel was taken, and acting upon the advice the warrant was sworn out; that subsequently it was submitted to the police prosecutor and upon his advice the warrant was sworn out; and that it was subsequently submitted to the grand jury by. the prosecuting attorney.

Attorneys—Young, Stocker & Fenner for Company; Sizer & Hafley for Wies; all of Cleveland.

The Court of Appeals held:

1. Verdict was not so manifestly against weight of the evidence as to warrant reviewing court in disturbing findings in lower court.

2. If all the facts are submitted to counsel and counsel gives his opinion that probable cause exists for swearing out a warrant, that would be a complete defense to an action for malicious prosecution.

3. Lower court charged the jury, said charge embodying the purport of the foregoing.

4. Record shows that in this case all the facts were not submitted to counsel.

5. Jury, under charge of the court must have found that counsel had not been fully advised of all the fgcts when his opinion was desired.

Judgment of lower court affirmed.  