
    No. 315
    AL. G. KOCH v. EDWARD W. POND
    Ohio Supreme Court.
    Error to Hamilton Co. Appeals
    No. 18348.
    On Motion to Certify
    745. MALICIOUS PROSECUTION — Probable cause and adVice of counsel as justification.
   Pond was an employe of Koch, and had a lawsuit with him involving commissions on real estate. Pond gave testimony therein. Following it, Koch made an affidavit charging Pond with perjury. Pond was acquitted, and then brought action for malicious prosecution in the Hamilton county Common Pleas. In this Koch denied the averments of the petition and plead advice of counsel. Pond received a judgment of $5,800. At the trial Koch offered evidence to prove that at the trial in the Municipal Court he had heard the trial judge intimate that the testimony of Pond was false. This proof was rejected.

The Court of Appeals found the judgment -excessive, but held there was no other reversible error. The plaintiff consented to a remittur and judgment for $4,000 was permitted to stand.

Koch complains that the charge of the-court to the jury was given on the basis that the issue in the case was whether perjury was committed by Pond, when it was whether in instigating the prosecution he was1 actuated by malice, and whether he had probable cause to believe the defendant Pond guilty.

Attorneys — Eugene Adler & Sidney Adler, Binsmore, Shohl & Sawyer, Cincinnati, for Koch; D. T. Hacket and Samuel Rotter, Cincinnati, for Pond.

Koch also complains that at the conclusion of the charge of the court, the judge was asked by his council to explain to the jury the application of the law to the facts and state what facts would and what not establish probable cause. This the court refused to do, but charged defining probable cause.

He also complains that the court refused to give his special request, as to acting upon the advice of counsel, the ground of the refusal being that the request set forth only that Koch in good faith niade a statement to his attorney of all the facts known to him, but should have stated further that he stated such facts as he might have ascertained by ordinary care.  