This is an action to recover damages for malicious prosecution. From a judgment of $1,000 in favor of plaintiff, defendant appeals.
The defendant, Philip Barach, was employed by Sam Stone as a bartender in a beer garden in the city of Detroit. Plaintiff, George Baker, was also employed in the same beer garden. About 2 o'clock in the morning of July 5, 1938, the defendant, Philip Barach, was held up and robbed of more than $500 in the place of business where he worked. At the time of the robbery, plaintiff was in the building performing his duties of locking up the place for the night.
A few days after the robbery, one Anderson Perry was apprehended in connection with the robbery and was identified by Barach as the man who had held *Page 221 the gun on him and taken money from him. Perry confessed to committing the robbery and implicated Baker by informing the prosecuting attorney and police officers in the presence of defendant that Baker had given him the gun with which to commit the robbery by handing it through one of the windows; and that the proceeds of the robbery had been divided between them. Upon the advice of the prosecuting attorney, defendant signed a complaint against plaintiff for robbery armed. Upon the trial of the criminal action, Perry repudiated his confession and plaintiff was acquitted.
Plaintiff thereupon brought the present action. At the close of plaintiff's case, defendant moved for a directed verdict and renewed this motion at the close of all testimony. The trial court denied the motions and submitted the cause to the jury.
In appealing, defendant contends that it was the duty of the trial court to direct a verdict in his favor as the undisputed evidence shows probable cause; and that plaintiff has failed to establish a want of probable cause.
The rule in Michigan is that when the facts are undisputed, the question of probable cause is a question of law to be determined by the court. Rogers v. Olds, 117 Mich. 368; Thomas v. Bush, 200 Mich. 224; Clanan v. Nushzno, 261 Mich. 423.
For the purpose of deciding defendant's motion made at the close of all testimony, we shall assume that there was a robbery as described by defendant. The fact that there was a robbery is not disputed by any direct testimony, nor is the fact that defendant disclosed all the material facts that he knew to the prosecuting attorney disputed. But there is evidence that defendant did not inform the prosecuting attorney prior to the issuance of the warrant for arrest of plaintiff that as the robber was leaving, after having relieved defendant of the *Page 222 money, defendant saw his face and was able to identify Perry, the alleged robber, at the police station, as Perry had been in the beer garden many times and on the previous evening had been in and out of the place all evening. In our opinion, this testimony was not material.
It is also a fact that defendant signed the complaint against plaintiff only after plaintiff had been accused by Perry and upon the advice of the prosecuting attorney. We have held that where the prosecuting witness has in good faith fully and fairly stated all of the material facts within his knowledge to the prosecuting attorney and acted upon his advice in signing the complaint, a case of probable cause is established.Smith v. Tolan, 158 Mich. 89; Swaney v. John Schlaff CreameryCo., 212 Mich. 567; Weiden v. Weiden, 246 Mich. 347;DeVitis v. Newcomb-Endicott Co., 264 Mich. 1. And we have held that a lack of probable cause is an essential element to recovery. Thomas v. Bush, 200 Mich. 224.
In the case at bar, defendant, who was the prosecuting witness in the criminal case, disclosed to the prosecuting attorney all of the material facts that he knew and having acted upon the advice of the prosecuting attorney in signing the complaint, we hold that a case of probable cause was established.
In the case at bar, the plaintiff's attorney has filed a brief which, in our opinion, contains matters so foreign to the issues involved, namely an attack upon men who were not witnesses in the case, that we deem it scandalous and strike it from the files.
The judgment of the circuit court is reversed, with costs to defendant.
BOYLES, CHANDLER, NORTH, and WIEST, JJ., concurred with SHARPE, C.J. *Page 223