
    William Scott, Respondent, v. Dennett Surpassing Coffee Company, Appellant.
    
      Malicious prosecution ■—proof that a corporation was responsible for it — proof of the secretary’s authority to institute it, of malice, of the res gestae, and of probable cause—probable ca/ase, when a question of law and when one of fact — advice of counsel.
    
    Evidence, in an action against a corporation for malicious prosecution, that its secretary, after consultation with its general manager and general counsel,' laid an information charging a cashier in one of its eating.houses with stealing its funds and that the proceedings upon the cashier’s trial, were conducted under the secretary’s eye and that of the general counsel, who, sitting with the district attorney, had attended throughout and made some suggestions, is-sufficient to warrant the finding that the corporation was responsible for the . prosecution.
    Proof that, pending the criminal proceedings and before the criminal trial, the secretary told the accused cashier that “ they ” had made a little mistake and that “ they ” W'ould withdraw the charge if he would release “ them,” is competent upon the question of malice and of the secretary’s authority in the premises and as part of the res gestae of the criminal prosecution. •
    An honest belief in the guilt of the person accused does not constitute probable cause for a prosecution, unless it is founded upon grounds which would satisfy an ordinarily prudent and cautious man; if the suspicious circumstances might have been explained by a proper investigation, the omission of such investigation is evidence of the absence of probable cause.
    
      Where the facts bearing upon the existence of probable cause are undisputed and admit of but one inference, the question of probable cause is to be decided by the court, but if the facts are in dispute or admit of opposing inferences, or if the facts and the law áre closely knit and not easily susceptible of separate-decision, the question is to be decided by the jury. ,
    The fact that a person takes the advice of counsel before instituting a prosecution does not, of itself, warrant a finding that he had probable cause.
    Appeal by the defendant, the Dennett Surpassing Coffee Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 8th day of April, 1899, upon the verdict of a jury for $2,500, and also from an order entered in said clerk’s office on the 4th day of April, 1899, denying the defendant’s motion for a new trial made upon, the minutes.
    
      Jacob Fromme, for the appellant.
    
      Wales F. Severance [Charles L. Greenhall with him on the brief], for the respondent.
   Jenks, J.:

The defendant appeals from a judgment entered on a verdict of a jury awarding to the plaintiff damages in $2,500 for a malicious-prosecution and from an order denying a motion for a new trial. It is claimed that there was no proof of want of probable cause or of malice, that the prosecution was not brought home, to the defendant corporation, that the verdict was contrary to law, that the damages were excessive, and that errors were made in various rulings-upon the evidence.

Probable cause, unlike malice, is not determined by standard of the particular defendant, but of the ordinarily prudent and cautious man, exercising conscience, impartiality and reason without prejudice upon the facts. (Heyne v. Blair, 62 N. Y. 19, and cases cited.) And so, a mere honest belief in guilt is not enough; it must be founded upon reasonable grounds. (Farnam v. Feeley, 56 N. Y. 451; Fagnan v. Knox, 66 id. 525.) For though he have belief^ and yet act. negligently and irrationally, the prosecutor' may Hot have probable cause. The test, then, is not exclusively limited to the actual knowledge in fact of the defendant, but may be put to-any knowledge which he could or ought to have gained in the exercise of ordinary prudence and caution. And if by such exercise a proper investigation might have cleared away suspicious circumstances, and yet was omitted, here may be evidence of no probable cause. (Add. Torts, 221; Sweet v. Smith, 42 App. Div. 502, 509; Farnam v. Feeley, supra; Grinnell v. Stewart, 32 Barb. 544; 2 Greenl. Ev. 452; Barron v. Mason, 31 Vt. 189; Abrath v. North Eastern Railway Co., 11 Q. B. Div. 440, 442, 450; Tabert v. Cooley, 46 Minn. 366.) Were the rule otherwise, the omission of ordinary care and prudence would equal the exercise thereof and rashness would rank with caution. And then, too, the question would not turn on the belief of the ordinarily prudent and cautious man, as the law is, but upon the belief of a defendant who might have been imprudent and incautious.

Addressing the case at bar we first ask whether there was shown any knowledge of facts in the defendant that might explain the suspicious circumstances and clear the accused in the eye of an ordinarily prudent and cautious man. For the defendant cannot escape by excluding them, if they existed, and by putting forth the mere prima facie circumstances. (Fagnan v. Knox, supra) And we next ask whether there were shown any facts that the defendant, acting with the care and prudence of an ordinarily cautious and prudent man, could or ought to have learned that should have stayed such a man in the prosecution. The plaintiff was charged, in an information laid by the secretary of the defendant, with the theft of $5.95 from the defendant on October 30, 1899, in that the plaintiff, as cashier of the defendant, had paid to another employee $148.85 as the total receipts of one night, as shown by his cash slip, and that, though- this amount corresponded with the total of his cash-registering machine, it did not tally with the checks showing orders, as the defendant had ascertained by personal examination. A man of ordinary caution and prudence would be reasonably sure of his ground before making an accusation of crime upon a variance of a few dollars between the sum of the checks and the'sum of the cash receipts representing the business of a single night, for the deficit might naturally have occurred through omission, inadvertence or mistake. The ■ plaintiff was arrested after two or three days, without intimation of suspicion or opportunity for explanation. Upon arraignment he waived examination as to his defense, and was thereafter tried, acquitted and discharged at the Special Sessions. About two weeks intervened his arrest and his discharge. The defendant had employed the plaintiff for two months as a cashier in one of its many eating houses.- It furnished its waiters with checks in duplicate, and each check was,-so to speak, an- omnibus check, marked with various figures — five cents, ten cents, fifteen cents, etc.— indicating various prices for victuals. When a customer had taken food the waiter, using a cutting punch, would cut the price thereof out of . the check, and would give the check to the customer, retaining the duplicate. The plaintiff, as cashier, would . collect the sum or sums as indicated on the check, file the check, put the money in a drawer, and ring up each payment on a' cash registering machine. When his .work from seven o’clock in tire night until seven o’clock in the morning -was done the plaintiff gave over his checks to another employee, counted up his receipts and landed them, with a statement slip, to a third employee, who marked it “ O. K.” for -audit if it corresponded with the cash register, whereupon the slip was sent to the main office. Such was the routine of the night in question.. The plaintiff was not required to recount the 1,000 checks — about the usual number — which averaged about fifteen cents each. Thus it appears that the defendant knew that plaintiff only ascertained that the cash returned tallied with the cash rung up, and that he was not required to compare the sum of his receipts with any sum found by his count or recount of the 1,000 checks. And yet, as stated, the criminal charge was founded solely upon a variance of a few dollars between the sum ■represented by the checks and the cash receipts, which, however, tallied with the registered amount on the machine. The testimony also show-ed that the cutting punches used by the waiters were dull and often would not cut out jthe figures, and would but mar or dent the check, leaving the paper in the cut, and that this fact had shortly theretofore been reported to the local manager. An examination of the-checks in question, made subsequent to the arrest but previous to the criminal trial, showed that -such was the condition of many of them,.and that the defective cuts could- not be detected “ in the rush ” of business, but only upon close inspection. The significance of this is that the waiter sometimes had attempted to cut a second .or further amount upon one check that in the haste of the moment might readily escape the eye. An essential fact in the criminal base, upon tiie evidence presented by the defendant, was the plaintiff’s exclusive charge of the cash drawer during his hours, for a substitute might have received and filed checks without placing the payments thereon in the money drawer and without indicating them upon the registering machine. Yet the plaintiff showed by three witnesses that during his hours of service upon that evening he was twice absent from his desk, at eight o’clock and at twelve o’clock (once for a period of from fifteen minutes to half an hour), when'liis place was taken by one Guinan, the local manager. In view of the basis of the criminal charge and the testimony offered on the part of'the plaintiff, which is not here summed up but indicated in part only, the learned trial court would not have been justified in dismissing the complaint at the close of the plaintiff’s case for failure of proof of no probable cause. (De Matteis v. La Maida, 74 Hun, 432.) .It further, appeared in the testimony of the defense that previous to the criminal trial the defendant had made a mistake in one of its own recounts of the checks ; that it required of the plaintiff a bond and an agreement permitting withholdings from, salary for deficits, inasmuch as it realized that honest mistakes leading to such deficits might be made in the hurry of business, in the making of change and the like. It was admitted that similar deficits had previously occurred by errors and by mistakes of other cashiers in the same position during the time that Henry was the secretary of the defendant. The defendant offered testimony that previous to the arrest one of its employees had informed it that the plaintiff had proposed a conspiracy to rob' their employer, that involved a destroyal of the checks, but it was not claimed that the alleged crime was in furtherance of any such scheme or presented any similar features. It was given in evidence that advice of counsel was taken. We think the testimony of the defendant did not change the rights of the plaintiff, and that there was no error, certainly none to the prejudice of the defendant, in the submission of the. question of probable cause to the jury. It is well settled that if the facts are undisputed and admit of but one inference, probable cause is a question of law, but if the facts are in dispute or admit of opposing inferences, the question is for the jury. (Fagnan v. Knox, supra; Wass v. Stephens, 128 N. Y. 123.) If the facts and law aré closely knit, and so not easily susceptible df separate decision, ■ the question is for the jury. (Besson v. Southard, 10 N. Y. 240; Masten v. Deyo, 2 Wend. 424 ; Heyne v. Blair, supra ; Stewart v. Sonneborn, 98 U. S. 187.) In Heyne v. Blair (supra), after a review of the authorities, the court say: “ It is pre-eminently a question for the judgment of twelve men to determine what, upon a-doubtful state of facts, or upon facts from which different men would draw different conclusions — that is, upon facts capable of different inferences — would be the belief and action of men of ordinary caution and prudence.” Advice of counsel does not form the basis for a finding of fact that the defendant had probable cause. (Hazzard v. Flury, 120 N. Y. 223.)

Malice may well be inferred from want of probable cause. In Burhans v. Sanford (19 Wend. 417), Bronson, J., said: “Malice may be, and usually is, inferred in these actions from the want of probable cause.” (Heyne v. Blair, supra, 20, 22; Wilder v. Holden, 41 Mass. [24 Pick.] 8.) Malice is * * * a question exclusively for the ■ jury.” (Stewart v. Sonneborn, supra,.) It is claimed that the plaintiff failed to bring the prosecution home to the defendant. It is now settled that this action will lie against a corporation. (Morton v. Metropolitan, Life Ins. Co., 34 Hun, 366; affd., 103 N. Y. 645;. Willard v. Holmes, 142 id. 492.) The defendant could act only through its officers and agents. Henry was its secretary. Previous to the arrest he had consulted with the general manager, who referred him to the defendant’s general counsel. ■ The counsel and Henry went before the magistrate; Henry, as secretary, laid the information charging the larceny from the defendant, and the proceedings and trial were conducted under his. eye and that, of the general counsel, who attended throughout and made some suggestions, sitting with the district attorney. We think that this was sufficient to justify a submission to the jury. (Morton v. Metropolitan Life Ins. Co., supra.)

There are no errors in the rulings upon evidence available to the defendant. The bond and agreement above referred to were'relevant and. material upon the employment of the plaintiff and the surroundings of his service. It was not error to permit the plaintiff to testify that pending the criminal proceedings, and before the criminal trial, Henry had said that “ they ” had made a little .mistake, i and that “ they ” would withdraw the charge if the plaintiff would release “ them.” This testimony was relevant and material to the question of malice. (Fitzjohn v. Mackinder, 9 C. B. [N. S.] 505, 580.) It was competent under the facts shown as to Henry’s ■authority in the premises and as part of the res gestee of the criminal prosecution. (Scott v. Middletown R. R. Co., 86 N. Y. 200, 208 ; Wild v. N. Y. & A. S. M. Co., 59 id. 644; Venderbilt v. Mathis, 5 Duer, 304.) The ruling does not offend Fagnan v. Knox (supra), for the question there related to a repayment of a deficit, which was, of course, no evidence of belief that no crime had been •committed. The refusal to permit an answer to the question put by the defendant to its secretary, What was the first thing you beard in reference to Scott’s doing anything wrong in the Fourteenth street place ? ” was error. (Owens v. New Rochelle Coal & Lumber Co., 38 App. Div. 53.) But the error was harmless, inasmuch us the defendant immediately elicited all of the facts within the scope of.the question theretofore excluded. We have examined the ■other exceptions and none has any merit.

The amount of damages should not be disturbed. Damages in these eases may be based upon injury to person, to reputation, and to pocket. (Add. Torts [7th ed.], 230 ; Newell Mal. Pros. 492.) The testimony of the plaintiff warranted the. consideration of all these elements. The amount of damages affords no evidence in this ease of intemperance in the minds of the jury, which necessarily, in .this as in all cases of tort, had a broad discretion.

The charge to the jury stands without exception, and is as considerate of the defendant as the law allows.

The judgment and order should be affirmed.

All concurred.

Judgment and order affirmed, with costs.  