I am obliged to dissent from the majority opinion, particularly from those portions wherein the court says: "Plaintiff produced no legal evidence tending to prove that defendant acted maliciously or in wanton disregard of plaintiff's rights" and "There is nothing in the record tending to show that defendant did not state fairly and fully all the facts within his knowledge relating to his claim against Brusco; the undisputed evidence is that defendant acted in good faith upon the advice of his attorney."
In the action which forms the basis of these proceedings this defendant caused the arrest of the plaintiff herein by making affidavit in substance as follows: (1) that he had a just claim against this plaintiff that was due; (2) that this plaintiff was about to leave the State without leaving therein real or personal estate whereon an execution could be served, and (3) that this plaintiff had committed fraud in fact, in contracting the debt and in the disposition of his property. *Page 114
There was no evidence presented to the jury of any direct indebtedness of plaintiff to defendant. The proceeds from the discount of the note — which is to be hereinafter referred to — were given to defendant and received by him in payment of plaintiff's indebtedness to him. As defendant was an accommodation maker of said note, liability of plaintiff to him would arise only in the event that plaintiff failed to pay said note at its maturity.
Regarding the first statement in the affidavit, that the claim was due, the note — which this plaintiff and defendant and a third party signed as comakers — was due and payable fifty-two weeks from December 7, 1929. On January 18, 1930, forty-two days after the note was signed, and the day on which plaintiff was arrested, said note was neither due nor payable. Therefore the affidavit stating that said sum was due was false. At the maturity of the note it was met by this plaintiff, and defendant was at no time called upon to meet the obligation.
Upon the second allegation there was ample evidence upon which the jury might and, as a fact, did find that plaintiff was not about to leave the State. The jury undoubtedly disbelieved defendant's statement that plaintiff and another had informed him to this effect.
As to the allegation of fraud in contracting the debt and in disposing of property, a sufficient answer is contained in the fact that the plaintiff paid the note in full at its maturity in accordance with his agreement so to do and therefore was in no manner indebted to the defendant.
At the close of the testimony the jury, under proper instructions, found in favor of this plaintiff. The record discloses ample evidence to the effect that in causing plaintiff's arrest the defendant acted maliciously and in wanton disregard of plaintiff's rights.
In my opinion the strong preponderance of the evidence supports the finding that this defendant did not make a full disclosure to his counsel. After stating generally, upon direct examination, that he told his attorney everything, *Page 115 defendant, upon cross-examination as to what he specifically told his attorney, answered as follows: "I told him I endorsed a note for a man, $350." Q. "What note did you endorse?" A. "The note at the Cranston Loan Company." Q. "You signed as a co-maker?" A. "Yes, and I say the man just put in $1700; he took in $1700 a second mortgage, and ready to leave town, going to the Old Country, and I ask him what to do and he told me what to do." Q. "You told your lawyer that?" A. "Yes." Q. "What else did you tell him?" A. "That is all I told him." Q. "As a matter of fact, Mr. Brusco didn't owe you any money the day you arrested him, did he?" A. "He owes me that $350 I endorsed. If he never paid for that, I had to pay it."
The evidence indicates that defendant did not tell his attorney that the debt was not due. It is not to be presumed nor is it probable that any attorney in good standing would counsel signing and swearing to an affidavit in which were the words "is now due" upon a claim both in law and in fact not at said time either due or payable. His conduct of the action and the pleadings therein show that he considered the debt to be due, which belief he could not possibly have entertained had full disclosure been made.
It further appears to me that, as a matter of justice, when the advice of an attorney is offered as a defense to an action for malicious prosecution or abuse of process, the attorney — if his advice was given — should take the stand and testify to the facts. In the instant case the attorney was in the courtroom and his testimony was necessary to make certain and definite the rather incomplete and contradictory testimony of defendant. Had he taken the stand, he would have been required to explain the reason for advising or allowing a client to sign an affidavit alleging the debt to be due when as a matter of fact it was not due. In all probability he advised the issuance of the writ upon information from defendant that the debt was due, that plaintiff had mortgaged his property and that he was about to leave the *Page 116 State. Such a partial disclosure in itself indicates concealment of a material fact from which malice and wanton disregard of plaintiff's rights may be found.
There must also be considered the fact that this defendant was not an indorser but a comaker of said note and that the action as brought, was upon the money counts, indicating that the attorney acted upon information that plaintiff owed defendant for work and labor. If defendant said anything about a note, his attorney could not have heard or understood him; for, had he heard, it is reasonable to presume that the declaration would have contained a count based on the note.
The plaintiff's contention that there was a malicious use and an abuse of the process of the court to obtain through an unwarranted arrest of the plaintiff the payment of money not due at the time of the issuance of the writ of arrest was a proper question for determination by a jury and was submitted to them under instructions which were not excepted to and which became the law of the case.
The majority opinion indicates that an inspection of the record casts much doubt upon the credibility and honesty of the plaintiff. Said opinion finds, in effect, that plaintiff, having borrowed $1700 for a certain purpose which — according to his testimony — required the use of the entire sum, was guilty of fraud in not using a portion of said sum for another and dissimilar purpose. While the testimony of plaintiff may — in certain respects — be subject to criticism, my examination of the record leads me to the conclusion that the defendant's testimony was neither definite nor true. The fact that the jury placed no reliance upon his testimony is further substantiated by their finding against the binding effect of a release which defendant offered in evidence as a bar to plaintiff's right of action. Considering the testimony as a whole, the jury believed that of this plaintiff and disbelieved that of defendant, and in support of the verdict the trial justice in his rescript said: "The jury in this case was not fooled any more than the court *Page 117 was. Its verdict is fair and does real justice between the parties."
This was clearly a case in which seeing and hearing the witnesses was an element of paramount importance in determining the weight of the evidence. This court in no uncertain terms, inWilcox v. R.I. Co., 29 R.I. 292 and in numerous other cases arising subsequent to that decision, has given great weight to the opinion of the trial justice in his approval of a verdict based upon conflicting evidence. We quote again the rule approved and quoted in Wilcox v. R.I. Co., supra: "we will not interfere . . . because, first, the jury have found the verdict and given credit to the witnesses on the one side of the conflict; second, the judge, who also heard the testimony from the mouths of the witnesses, and weighed the same in the balance of his more cultured and accurate legal judgment, has . . . given his approval and indorsement to the verdict; and, third, this court can never have the benefit of observing the conduct and deportment of the witnesses while testifying. . . . There is nothing to show that the jury were governed by any improper motives or that the judge erred in the performance of his duty."
Upon consideration of the evidence there was no error in the ruling of the trial court denying this defendant's motion for a directed verdict. The verdict upon conflicting evidence has the support of the trial justice and should be sustained.
I am therefore of the opinion that the defendant's exceptions should be overruled and the case remitted to the Superior Court for the entry of judgment on the verdict.