
    Paul Schmidt, Respondent, v. Medical Society of the County of New York, Appellant.
    First Department,
    February 3, 1911.
    Malicious prosecution — burden of proof — malice — probable cause — guilt of plaintiff immaterial—-trial—when probable cause for court, when for jury — facts showing probable cause.
    Plaintiff in an action for malicious prosecution is under the burden of showing by fait preponderance of evidence that the prosecution was malicious.
    Malicious prosecution is one that is begun in malice without probable cause to believe it can succeed, and which finally ends in failure, which matters the plaintiff must prove.
    Probable cause alone is a complete defense to the action; actual guilt of the plaintiff is not essential.
    Nor is it necessary in order to justify a'prosecution that 'the accused appeared to be guilty beyond all reasonable doubt. One may act upon wliat appears to be true even if it turn out to be false, provided he believes it to be true and the appearances are sufficient to justify the belief as reasonable.
    The reasonableness of a prosecution must be determined as of the time when it was commenced.
    The existence or non-existence of probable cause is a question of law for the court, except where the facts are disputed when it becomes a mixed question of law and fact to be submitted to the jury under proper instructions as to the . law.
    A medical society organized for the purpose of enforcing the laws regulating the practice of medicine had probable cause for prosecuting one not licensed to practice, if, upon learning that a person was in a hospital suffering from glanders, he wrote letters offering to cure him, visited him at the hospital, where he left medicine with directions for its use and permitted himself to be called a doctor.
    Appeal by the defendant, the Medical Society of the County of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 2Sth day of April, 1910, upon the verdict of a jury for $7,500, and also from an order entered in said clerk’s office on the 4th day of May, 1910, denying the defendant’s motion for a new trial made upon the minutes.
    
      Almuth C. Vandiver, for the appellant.
    
      Denis A. Spellissy, for the respondent.
   McLaughlin, J. :

Action to recover damages for malicious prosecution. The defendant is a domestic corporation. The object of its' incorporation, among other things, is to assist in the preservation of the, public health and secure the enforcement of laws regulating the practice of medicine in the county of New York. On or about May 4, 1907, the plaintiff, at the instigation of the defendant, was arrested on a charge of practicing medicine without being legally authorized to do so, in violation of section 153 of chapter 661 of the Laws of 1893, as amended by chapter 455 of the Laws of 1905. He was taken before a magistrate where, after several adjournments, lie was held for trial in the Court of Special Sessions of the city of New York. He was tried in that court on March 5, 1908, and acquitted. After his acquittal he brought this action to recover damages for his prosecution, alleging that the same was malicious and without probable cause. The answer put in issue the material allegations of the complaint. Plaintiff liad a verdict for a substantial amount and from the judgment entered thereon and an order denying a motion for a new trial defendant appeals.

At the trial of this action the evidence established, in substance, that the plaintiff was not authorized to practice medicine in the State of New York; that he held himself out as Dr. Schmidt and claimed to have produced a remedy which would cure.glanders;

of April, 1907, an article appeared in one of the published in the city of New York to the.effect that a hett was in Bellevue Hospital suffering from glanders; is article was shown to the plaintiff by one Conrad, who at the time told the plaintiff he had written Dr. Gannett, the letter ng signed “ Department of Glanderiue, per C. Conrad us, Secrery,” offering to cure him free of charge, provided proper credit as given for the cure and that the plaintiff approved of such let-er'; that the letter was received by Dr. Gannett and he turned the ame over to the defendant, which, after an investigation, discovered that Conrad had theretofore been convicted of illegally practicing medicine and with Dr. Gannett’s consent an answer was sent purporting to be signed by him .requesting Conrad to call if he could cure glanders; that sometime during the day on which the answer was sent, Conrad called at the hospital, accompanied by the plaintiff, whom he introduced as “Herr Dr. Schmidt;” that Conrad, in the presence of the plaintiff, stated that he could cure glanders ; that Schmidt was a specialist on the subject and had discovered a cure for glanders; that Conrad and Schmidt then examined Dr. Gannett, but as to just how thorough the examination was the testimony was somewhat conflicting; that after such examination Conrad and Schmidt conversed with each other in German, and then Conrad, claiming Schmidt could not speak English, purported to interpret what Schmidt said, which was to the effect that Dr. Gannett had glanders, but he could cure him ; that they then left and the next day a letter was received by the physician in charge of Dr. Gannett, and also one by Dr. Gannett himself, signed in the same way as the prior letter, stating that Dr. Schmidt was sure Dr. Gannett’s disease was glanders and that a written guaranty would be given to cure him, provided written authority to undertake the case was first received; that two days later another letter was received by Dr. Gannett, signed by Schmidt as president of the department of glanderiue; that no authorization of any kind was given to the plaintiff to treat Dr. Gannett, but on May second, Conrad and plaintiff again appeared at the hospital and again examined and questioned Dr. Gannett, and left pills for him to. take and a bottle of medicine to be used as a wash, with directions as to their use; that further directions as to the use of the medicine thus left were

contained in a letter received the next day, signe

* ■ * * Pres. that on May fourth plaintiff and

called at the hospital to see Dr. Gannett, and both arrested on a charge of illegally practicing medicine; and tlr the plaintiff’s arrest he was searched and on his person was foti paper which purported to give the symptoms of glanders obser in Dr. Gaunett’s case, which was subscribed “ p. Dr. Paul Schmidt also, a card which bore the name of “ Dr. Paul Schmidt, * * inventor of the Glanderine for Horses, etc.”

, Before’the plaintiff could succeed in the action, he had to establish by a.fair preponderance of evidence that liis prosecution was

• malicious. Malicious prosecution lias been defined as “ one that is begun in malice, without probable cause to believe it can succeed, and which finally ends in failure.” {Burt v. Smith, 181 M. Y. 1.) In order to succeed, therefore, the plaintiff had to prove that his prosecution was malicious, without probable cause, and that he was acquitted. At the conclusion of plaintiff’s case the defendant moved for a dismissal of the complaint on the ground that the plaintiff had. failed, to prove want-of probable cause. The motion was denied and an exception taken, and at the conclusion of the whole case defendant moved for the direction of a'verdict on the same ground. This motion was also denied and an exception taken.

I am of the opinion that the trial court erred in each case, and each exception necessitates a new trial. The trial court, as appears from' its rulings and the charge to the jury, apparently was of the opinion that actual guilt and probable cause must concur in order to constitute a defense. ■ This is not the law— probable cause alone being a complete defense. (Fag'nan v. Knox, 66 N. Y. .525 ; Kutner v. Fargo, 34 App. Div. 317; Bankell v. Weinacht, 99 id. 316; Clark v. Palmer, 116 id. 117; affd., 191 TT. Y. 540.) It is not necessary that the accused, in order to justify a prosecution, should- ■ appear to be guilty beyond all reasonable doubt; but, as said in Burt v. Smith {supra), “ one may act upon what appears, to be true, even if it turns out to be false,-provided he believes it to be true and the appearances are sufficient to justify the belief as reasonable.” The test as to whether reasonable or not must beapplied at the time when the • prosecution was commenced. {Foshay v.' Ferguson, 2 Den. 617.) As to whether or not probable cause exists

sa,:n8.es, as said in some of the authorities, a mixed question of law ^ejfact, and should be submitted to the jury with proper instructs as to the. law. (Masten v. Deyo, 2 Wend. 424; Besson v. %utharcl,-10 N. Y. 236; Fagnan v. Knox, supra.)

* After a careful consideration of all the evidence adduced at the trial, and giving the plaintiff the benefit of every disputed question of fact, I am of the opinion that he not only failed to prove want of probable cause,.but, on the contrary, the existence of probable cause was conclusively shown. There is nothing to indicate that defendant-was actuated by malice or that it had any desire to do otherwise than carry out one of the objects of its incorporation, which was to prevent persons practicing medicine without being authorized to do so by the statutes of the State. It is unnecessary to determine, whether the plaintiff was actually engaged in the practice of medicine within the meaning of the statute,-it being sufficient for the purposes of this appeal that, there was at least probable cause for the defendant’s believing that he was doing so. I do not see how any person of ordinary intelligence would not have probable cause.for believing that the plaintiff was engaged in the practice of medicine when the receipt of the letters from the department of glanderine, offering to cure Dr. Gannett of glanders, plaintiff’s subsequent visits to the hospital, his conduct there, leaving the medicine, which he did with directions as to its use, and permitting himself to be called a doctor, are. considered. These facts, being uneontradicted and 'unexplained, justified the' defendant in doing what it did. The trial court should have so held and dismissed the complaint at the close of plaintiff’s case, and having failed to do that, should have directed a verdict for the defendant at the conclusion of the whole ease.

If the foregoing views be correct, then it follows that the judgment and order appealed from should be reversed and a new trial ordered, with costs to appellant to abide event.

Ingraham, P. J., Laughlin, Scott and Dowling, JJ., concurred.

Judgment and order reversed, new trial ordered, costs to appellant, to abide event. •  