delivered the opinion of the Court:
This was an action on the case for malicious prosecution brought in the Superior Court of the city of Chicago by A. G. Innis against William M. and John H. Boss, composing the mercantile firm of Wm. M. Boss & Co., doing business in that city. The case has been three times tried by juries, and three verdicts obtained by the plaintiff with heavy damages. The first verdict was set aside by the court in which it was rendered, the judgment on the second was reversed by this court and the cause remanded. The result of the remand was another trial and a verdict for plaintiff for ten thousand dollars and judgment thereon. This judgment is brought here by appeal on bill of exceptions, and a reversal prayed on various grounds.
The charge on which the plaintiff was arrested was embezzlement—that, while a cleric in employment of the defendants, it was his duty to receive, safely keep and disburse the moneys of the firm. That during the continuance of his employment, he was intrusted with the sum of one hundred and sixty-six dollars by the firm, which, without the knowledge or consent of the firm, and against their will, he feloniously converted and appropriated to his own use, and embezzled from the firm with the intent to steal the same. He was examined on the charge and acquitted.
The question for determination in the several trials had, was, as to the criminal intent of the plaintiff in taking the money. That he took the money and appropriated it to his own use, the plaintiff never, at any time denied, he claiming the right to take it, as the balance of his salary as cashier, due him from the firm.
The defendants insist, and have always insisted, that there was probable cause for the arrest, and further, before they proceeded to take any steps towards plaintiff’s arrest, they obtained the advice of eminent counsel, and acted upon that.
1 If either of these grounds exists, and was proved, the verdict was wrong, and should have been set aside. If they do not exist, then another question will have to be considered, and that is, the amount of the damages.
- These grounds of defense will be examined. Probable cause is defined by this court to be a reasonable ground of suspicion .supported by circumstances, sufficiently strong in themselves, to warrant a cautious man in the belief that the person accused is guilty of the offense charged. Richey v. McBean, 17 Ill. 65; Jacks v. Stimpson, 13 id. 701; Hurd v. Shaw, 20 id. 356. If probable cause for the arrest exists, malice on the part of the prosecutor cannot be considered — it weighs nothing. The onus is upon the party bringing the action to show that the criminal prosecution was the offspring of malice and without any probable cause to justify it — that the prosecutor had no sufficient reason to believe the accused guilty. The want of this element, probable cause, is the main ground of this action, and it must be clearly shown; and though malice may be inferred from the want of probable cause, a want of probable cause cannot be inferred from malice. The burden is on the plaintiff to show affirmatively, by circumstances or otherwise, that the defendant had no ground for the prosécútion — no such reasonable ground of suspicion sufficiently strong in itself to warrant a cautious man in believing that the person arrested is guilty of the offense charged. In addition to the cases above cited, reference is made to the case of Israel v. Brooks, 23 id. 576, on this point.
In the last cited case, the court said, what those circumstances may be, cannot be specified, but wé would think, among them, the good character of the party accused would stand out prominently. That is a strong fact, if known to the accuser, to ward off suspicion, to weaken a belief, he being a .prudent and cautious man, in the guilt of the suspected party.
A glance at the leading facts must satisfy any one that no probable cause existed for the arrest.
The plaintiff had been in the employment of the defendants more than four years, and had an established character for honesty. During that time the daily receipts of the concern averaged fifteen hundred dollars, not one dime of which was unaccounted for by the plaintiff. A charge was made against him of a debt due from his brother, which the defendants claimed was to be paid by the plaintiff, and which they sought to set up against his salary. Denying the agreement, or any understanding that his brother’s debt was to be charged against his salary, but insisting it was to come out of certain insurance money, he, on leaving the establishment, appropriated to the payment of salary due the sum of one hundred and sixty-six dollars out of moneys of the firm in his hands. This was known to the defendants, and known, too, that he claimed the right to do so. He was not bound by the rule of the house, that sums over five dollars should be paid out on checks only drawn either by Wm. M. Boss, or by the plaintiff indorsed by other partners, as he was not a clerk in the meaning of that rule. Mor was that rule always observed, for repeated instances are shown in which it was departed from even as to the clerks. The defendants knew perfectly well, when they caused the plaintiff to be arrested for embezzlement, that he took the money as his legal right, for the balance of his salary, and that he denied the right of defendants to pay his brother’s debt out of his salary; that he retained the money as salary and made the proper entry in the book against himself, and pointed it out to John H. Boss at the time, insisting all the while on his right to take the payment of his salary. An embezzling thief would not so act. There is not one circumstance shown in the case, on this point, tending to make out probable cause, but everything to dissipate such a notion.
On the other point, that the defendants acted under the advice of counsel, that defénse can never avail unless there has been a full statement of all the facts to the advising counsel, all the facts of which the party is in possession, or which by reasonable diligence he could have ascertained. Ash et al. v. Marlow, 20 Ohio, 119. In Stevens v. Fassett, 27 Maine, 266, it was held if a person _with an honest wish to ascertain whether certain facts will authorize a criminal prosecution, lays all the facts before one learned in the la\v, and asks his deliberate opinion thereon, and the advice obtained is favorable to the prosecution, it will go far in the absence of other facts to show probable cause, and to negative malice in the action for malicious prosecution; but if it appears that the party withheld material facts within his knowledge, or which in the exercise of common prudence, he might have known, the opinion which he invokes in his defense cannot avail him. To the same effect are the cases of Bliss v. Wyman et al., 7 Cal. 257, and Kendrick v. Cyssert, 10 Humph., 291. Many other cases might be cited on the point, but it is unnecessary, as the bare statement of the principle proves its correctness. That the defendants withheld from their counsel several important facts is fully proved.
In the first place they sought to impress upon Mr. Blackwell that the plaintiff was an ordinary clerk, and subject to certain rules of the establishment, governing the clerics in obtaining money; that the plaintiff had. violated those rules in such away as to make him chargeable with the crime of embezzlement. The fact was, and must have been known to the defendants, that the plaintiff was not in that category at all, that his name never was on the pay roll of the clerks, and was not, and had not been subject to the rules as to his‘pay which governed the clerks as to their pay. By this their counsel was misled. The plaintiff’s true position was very important to be known by Mr. Blackwell, and if stated to him as it really was, it is not probable this sagacious lawyer would have seen any indication of embezzlement in the act done. Mr. Blackwell’s idea undoubtedly was that plaintiff was but a clerk and subject to the rules as to payment governing them.
Again, the defendants did not tell their counsel, if plaintiff was subject to this rule, that it was violated daily. If counsel had been informed of that fact, he would scarcely have said plaintiff was guilty of embezzlement for violating it for the purpose avowed.
Again, the defendants did not inform their counsel that the plaintiff was the assignee of his brother, against whom they held a balance, and that plaintiff claimed he was to pay this balance out of the assigned effects, and not out of his salary. This fact was never communicated to him, nor did the counsel ever hear of it until after the examination before the magistrate ; then for the first time he heard of the assignment.
The defendants also stated to their counsel that it was agreed between them and the plaintiff, that if he would guarantee the debt of his brother, it was all right and they would furnish him goods, and that in pursuance of that agreement, an entry-had been made to plaintiff’s account, with his knowledge and consent, which was a ratification of the agreement.
Alexander Innis testifies he never heard of such a thing as a guaranty for his purchases; that he was never required to give any security, nor was any guaranty given by anybody to his knowledge, and never heard that plaintiff had become his guaranty. He says that the entry of a credit as paid by plaintiff on his account, of $189TVV, on 23d January, 1858, was made by plaintiff at his special request, as an act of friendship, and was confined to that single transaction.
Mr. Murray, the common uncle of the parties, had a conversation with the plaintiff about this matter, at the request of John H. Ross, when plaintiff told him to remind John Ross that when he took the money, he had told him of it, and charged himself with the amount on the books. This was communicated to John H. by Mr. Murray, but it was not communicated to counsel.
These were important facts and should have been revealed to counsel. The whole truth, all the facts, should have been fully disclosed.. As they were'not, the defendants are not. permitted to seek refuge under the advice given on a garbled statement of the facts.' ' '•
If justice was the sole object, if the laudable desire of bringing a culprit to punishment moved the defendants, if no wicked spirit stirred them, they would have disclosed the minutest fact to their counsel. Had they told him what has been proved on this trial, as shown in this record, it is not possible to believe Mr. Blackwell would have advised a criminal prosecution. This ground of defense entirely fails.
But there are some facts going to show that the defendants did not act on the advice of counsel, but had made up their minds to prosecute the plaintiff criminally before counsel had been consulted.
Mr. Murray testifies that soon after the plaintiff left the service of the defendants, John II. Ross, one of the defendants, sent for him on particular business. He went to the store and met John, who told him that plaintiff had taken one hundred and sixty-six dollars from the desk, that it was the same as stealing it; and he was resolved on prosecuting him criminally for it. He also said he had a telegram from his brother, from New York, requesting him to arrest plaintiff if he did not pay back the money. He said he would bring him back if he shoukl go to Texas. Witness was advised to see him and to tell him he would have him arrested if he did not pay the money back. On this being communicated to plaintiff he told witness to tell John Boss he would not pay back the money, that he took it as the balance of salary due and coming to him, no more, and to remind John Boss that when he did take the money he had told him of it, and charged himself with it on their books, and as to attempting to arrest him, they could not do it without swearing falsely, and if they did, he would take them up for it. This was stated to John Boss and he replied, he would arrest him in a short time, and we will see how he will like to be sent to Joliet. The witness warned Boss that he had better be cautious, that by arresting him, he might place plaintiff in a better position than he was in before. Boss replied to this, “ nonsense, how could he fight such a house as this.” Afterwards, on the return of William Boss from New York, the same witness states that he said to witness, plaintiff had had the presumption to take one hundred and sixty-six dollars from the desk, against the well known regulations of the store, and that he was resolved to make an example of him, he would let him see if he could play such tricks with him with impunity, and if he did not pay it back he would ruin him, he would make him, that he would never get a situation in Chicago as long as he lived. That they would arrest him and take him before a police magistrate, &e. On being asked what he wanted plaintiff to do, he replied, he wanted him to pay back that money. Witness then stated, if desired, he would see plaintiff once more and tell him his determination. Saw plaintiff accordingly, when he said, no threats should compel him to pay back what was justly his own, no matter from what quarter they came; that he only took what was due to him and no more; that the money taken was the balance of salary coming to him, and to remind Ross that he never promised to pay the balance of his brother’s account; that whatever passed on that subject depended upon the proceeds of his brother’s assignment and did not amount to a promise. This was communicated to William Ross, but he did not communicate it to his counsel.
These facts show a previous determination by defendants to arrest plaintiff on a criminal prosecution, before they had consulted counsel, and that consultation was a mere cover to carry out their own wicked intentions.
These facts go far to show that the defendants did not intend to be governed by the advice of counsel, whatever it might be. They had formed a previous determination to prosecute him at all hazards for a crime which they had every right to know the plaintiff had not committed.
The evidence fully establishes malice on the part of the defendants. In addition to what we have cited above, as evidence of malice, one of the defendants, on the investigation before the magistrate, and after -the plaintiff had been discharged, said: “If anybody comes to me to inquire after plaintiff’s character, I will say that he stole $166 from me, and that he is a thief and a liar.”
• How as to question of damages. Here have been three verdicts finding heavy damages in each. Apart from the principle that courts seldom disturb verdicts on , the ground of excessive damages, after three1 trials, having the same result, it must be a very strong case indeed in which this court, in an action sounding wholly in damages, will interpose to set the verdict aside. Wolbrecht v. Baumgarten, 26 Ill. 294.
This court has held that a verdict should not be disturbed on account of excessive damages in cases of tort, unless it be probable from the amount of damages assessed, that the jury has acted under the influence of prejudice or passion. Schlencker et al. v. Risley, 3 Scam. 484.
To judge from the amount of damages assessed, whether the jury have acted from prejudice or passion, the circumstances of the case must be well considered. Here, in. this case, was a causeless attempt, by a wealthy house, to blast forever the character of a young man just entering upon the active pursuits of life, with no endowment but his talents, fair character and uniform integrity. To him these were a priceless possession, in comparison with which, the amount awarded by the jury is trifling indeed. We cannot perceive, in the amount assessed, sufficient indications that in finding it the jury were actuated by prejudice or passion, or any unworthy motive. It was a powerful house making a heavy charge against a poor and friendless young man, placed in peculiar circumstances, which, if true, would have consigned him forever to a doom more dreadful than the grave, and forced him to become a wandering outcast on the face of the earth. There is no standard by which damages in such a case shall be measured. Much is committed to the intelligence of the jury, much faith is reposed and must be, in their sense of right and justice. We cannot say they have gone astray, and cannot, therefore, disturb this verdict.
A powerful house, possessed of extensive means, which one of the defendants thought it would be the greatest temerity for the plaintiff “ to fight,” in vindication of his honor and integrity, by their own wrong act and most unjustifiable conduct, and by the decision of a jury of their own selection, has placed the person in a position where he can further illustrate his good qualities and do business on a respectable capital contributed by the very men who sought his ruin through an infamous charge which they knew was unfounded. Such is retributive justice! The judgment is affirmed.
Judgment affirmed.