(dissenting) :
Being of the view that there was sufficient evidence tending to prove all of the essential elements of a cause of action for malicious prosecution, including lack of probable cause, I think that the judgment of the lower court should be affirmed.
In passing upon whether the issue of lack of probable cause should have been submitted to the jury, it is elementary that all of the evidence, together with the inferences reasonably deducible therefrom, must be considered in the light most favorable to the respondent. I, accordingly, review the evidence and state the facts in that light. Necessary to an understanding of the issue is a brief history of the *324various business dealings between respondent and one Cecil Floyd, an individual doing business as Floyd Motor Company, out of which dealings this litigation arose.
Over a period of several years these two parties had considerable dealings. Respondent purchased at least two automobiles from Floyd on the installment plan; as a contractor, painted Floyd’s house for him, and also sold Floyd certain materials. The chattel mortgage, out of which this controversy actually arose, was given by the respondent to Floyd in September 1959, in connection with the purchase of a used pickup truck. The face amount of this mortgage, including interest and carrying charges, was $349.00, and the payments were at the rate of $30.00 per month. Respondent made twelve such thirty dollar payments with reasonable promptness and regularity, making the twelfth payment in October 1960, which actually overpaid the face amount of that mortgáge in the sum of $11.00.
• Floyd’s claim of 'a balance due him on the particular mortgage account, asserted two years later in October 1962, arose out of and was based on certain charges made by Floyd on his ledger. account by virtue-of the “omnibus” indebtedness provision of the chattel mortgage, quoted in the opinion of the Chief Justice. The first of these charges was in the amount of $92.96, charged to the account of respondent for repairs: on October 8, 1959. The circumstances which gave rise to this charge were that the truck within thirty days after its purchase, required major repairs. There is evidence to the effect, however, that the truck was fully warranted by Floyd for a thirty day period, and, in fact, Floyd .did not deny that it was so warranted. The evidence further reflects that respqndent did not know of this, charge or the nature thereof until after .he was prosecuted by appellant in this ■ action, and it is clearly inferable that Floyd was not .entitled to the charge.
The second charge entered by Floyd on this account was in the amount' of : $84.00, which arose in the following *325manner. Respondent was paying Floyd ■ on - a mortgage on 'a station wagon as to which Floyd’s ledger account showed a balance of $484.00 on- November, 16, 1960. On that date, which was approximately one month after respondent’s last monthly payment on the truck mortgage, respondent gave Floyd a check in the amount of $400, and obtained from Floyd a satisfaction of the mortgage on the station wagon preparatory to trading same to appellant. The evidence about the remaining ledger balance in . the amount of $84.00 is conflicting. Floyd contends that -he was authorized by respondent to transfer it to the mortgage account on the pickup truck, such being, however, sharply, disputed by respondent, who contended that the four hundred dollar payment paid the mortgage on the station wagon in full. What rebate, if any, with r.espéct to finance charges, insurance, etc., respondent would' have been entitled. to upon prepayment of that mortgage Is not mentioned in the evidence.
Approximately three months after the mortgage on the station wagón was satisfied, respondent concluded painting Floyd’s house'for him, and, at the conclusion of the painting contract, Floyd paid' respondent all of the contract price save $64.00, which' he, Floyd, credited against fhe claimed balance of $84.00 on the station wagon account, leaving a net. balance on that particular account in the amount of $20.00, carried, forward-on Floyd’s ledger and charged to the truck mortgage account.
From the foregoing, it is clearly inferable that when these parties had a settlement between them in February, 1961, Floyd deducted everything which he believed respondent owed him. From February, 1961, untií October, 1962, when Floyd claimed a balance due him in connection with the truck mortgage, the record does not reflect that there were any. dealings between these .two parties other than that there is evidence to the effect that respondent sold to Floyd; through one -. of his- agents, - certain materials for which respondent-, has! not .yet been paid.- The exact amount of *326this indebtedness, or the date or dates when incurred, is not in the record before us. In any event, it does not appear that either Floyd or respondent billed or made any claim, one against the other, from February 1961 until October, 1962.
From the foregoing, the evidence clearly supports the inference that, in point of fact, respondent owed Floyd absolutely nothing in October, 1962, on the truck mortgage account, or otherwise, and, in fact, Floyd may very well have owed respondent a few dollars instead. Respondent, a man of limited education, frankly admitted that a mutual accounting might result in a small difference one way or the other.
When respondent traded the truck to appellant, according to his record, his knowledge, information and belief, the entire mortgage account on the truck had been fully paid approximately fourteen months prior thereto. Floyd made no claim as to any balance being due him on the truck mortgage account until approximately two years after respondent had actually overpaid the face amount of the mortgage to the extent of $11.00. By way of recapitulation, Floyd’s belated claim, in the net amount of $101.96, was based on the following items:
Disputed repair bill ................ $92.96
Disputed net balance on station wagon account ......................... 20.00
$112.96
Less overpayment on face amount of mortgage ....................... 11.00
$101.96
The record does not disclose precisely which statute appellant charged respondent with violating, but it is inferential that he was charged with the violation of Code Section 45-4, rather than Code Section • 45-157. Section *32745-4 is designed by its terms to protect a purchaser, such as appellant, from an undisclosed lien, and that is the section referred to in the exceptions of appellant here. The pertinent portion of that section reads as follows:
“Any person who shall wilfully and knowingly sell and convey any real or personal property on which any lien exists without first giving notice of such lien to the purchaser of such real or personal property shall be deemed guilty of a misdemeanor * *
The gravamen of the offense is not simply disposing of property upon which a lien exists, but rather, willfully and knowingly doing so without disclosing the existence of a valid lien to the purchaser. All of the circumstances disclosed by the record rather clearly indicate that respondent did not violate this section of the Code. The question, however, is not whether he committed the offense, but whether or not appellant had probable cause for the prosecution.
The prosecution of respondent was brought about by two agents of appellant, one Russell Humphries, secretary-treasurer of appellant, and one Webster who acted under the supervision of the said Humphries. Webster was the one who signed the warrant upon the authorization of Humphries. In determining whether they, or either of them, had probable cause for believing that respondent had actually violated the law, only the facts and circumstances which were or should have been known to them at the time the prosecution was instituted are to be considered. Admittedly, they did not know all of the ramifications of the dealings between respondent and Floyd, or the basis of Floyd’s disputed claim, but whether or not they, in the exercise of ordinary prudence o,r caution, should have known of certain facets thereof is another matter.
When Floyd’s claim was first brought to the attention of respondent, in October, 1962, by Humphries, respondent flatly and repeatedly denied to both Humphries and Webster *328that he owed Floyd anything on the truck mortgage. As mentioned above, respondent is a man of' somewhat limited education whose wife attended to most of his clerical work. On the other hand, the record is clear that he • is a man of substance, apparently of- good repute, owned more than one parcel of real estate in Lake City, and was engaged in the contracting business, his place of business being directly across the street from that of appellant. He had had previous business dealings with appellant, and there is no suggestion that he was not thoroughly reliable in such dealings.
When contacted by Humphries and Webster about'Floyd’s claim, he promised to try to get the matter straightened out with .Floyd. Not knowing the basis of Floyd’s claim, respondent, of course, co.uld not tell appellant’s agents what the controversy was about. On the other hand, they asked appellant for no proof of payment but simply took the position that it was a matter for respondent to straighten out with Floyd. According to the evidence, respondent contacted Floyd but could obtain no satisfactory explanation or information from Floyd. The appellant’s agents were pressing respondent to get the matter straightened out over a period of several weeks before the warrant was actually issued. During this period of time respondent was confined to his home for a while with pneumonia.
Humphries testified that he saw the actual mortgage held by Floyd prior to the institution of the prosecution, but made no, effort to ascertain the basis of Floyd’s claim. If Humphries looked at the mortgage as he said he did, he would have seen that the face amount of the mortgage, in accordance with the terms, should have been fully paid two years earlier. That circumstance alone, it seems to me, was sufficient to put a person of ordinary prudence and reason on notice and inquiry as to why Floyd had not sooner taken action thereabout if there was any validity to his claim. I think it is certainly not normal for an auto.mobile dealer to sit idly by for two years with a valid mortgage against a motor vehicle without making any effort to enforce the same.
*329In 34 Am. Jur. 735, Malicious Prosecution, Section 51, it is said, ..
“The failure of a person who has received information tending to show the commission of a crime to, make such further inquiry or investigation as an ordinarily prudent man would have made in the same circumstances, before instituting a proceeding, renders him liable for proceeding without probable cause. One may not'rely without further investigation on representations of another where the information received is such as to put an ordinarily prudent and cautious person on inquiry, or, it has-been held, where he has no personal knowledge of the truth of the representations.”
Neither Humphries nor Webster had any personal knowledge as to whether, in point of fact, any balance was due Floyd. On the other hand, they were informed by respondent, a reputable business man, that he, in fact, owed Floyd no.thr ing on the truck. Under these unusual circumstances, appellant’s agents made no effort whatever to even ascertain the basis of Floyd’s alleged claim.
In 34 Am. Jur. 733, Malicious Prosecution, Section 49, it is said,
“According to the generally áccepted view, probable cause does not depend on the actual state of the case in point of fact, but upon the honest and reasonable belief of the party commencing the prosecution. * * * The prosecutor must not only actually believe in the guilt of the accused, but the belief must also exist in the defendant’s mind at the time of the proceeding, and must be supported by circumstances sufficiently strong in themselves to warrant a reasonably cautious or prudent man in that belief.”
Far from having reason to believe or actually believing that the respondent here had violated the law by willfully and kno.wingly trading the truck to the appellant without disclosing the existence of a valid lien thereon, I think that the evidence abundantly supports.the inference that appellant’s *330agents here were not in the slightest degree concerned with whether respondent was guilty or innocent. It is quite clear that they were not at all interested in bringing a supposed criminal to justice. Appellant’s agents repeatedly testified, in effect, that the sole purpose of the prosecution was to, force respondent to pay Floyd’s claim, or make some settlement thereof, to the end that appellant could get a clear record title to the truck.
Clearly demonstrative of what appellant had reason to believe and actually did believe, I think, is the following testimony on the part of Webster who actually signed the warrant :
“Q. Now, on each occasion you went, Mr. Parrott told you that he would see Mr. Floyd about it?
“A. Yes, sir.
“Q. All right, then on each occasion you knew there was some question up between Mr. Parrott and Mr. Floyd as to whether or not there was any balance due?
“A. I figured there was a mixup somewhere.
“Q. You figured there was some misunderstanding on one side or the other, is that right ?
“A. Yes, sir. Mr. Floyd — usually he would sign one.”
The foregoing is clearly inconsistent with any belief on the part of the appellant that respondent had either willfully or knowingly traded the pickup truck to appellant without disclosing the existence of a valid lien thereon.
The record will reflect that both respondent and Floyd are apparently quite solvent. The appellant made no effort to clear the title to the truck by any civil proceeding. I think the entire record is susceptible of the inference that the appellant simply became exasperated with the respondent because he did not more promptly arrange for some disposition of Floyd’s claim and was quite willing to use a criminal prosecution, as opposed to any civil process, to force the issue, without any tho.ught or regard for the innocence of the respondent, or the consequent results to him.
*331Appellant, among other things, argues that it acted on the advice of counsel, and is, therefore, insulated against any liability. While the record shows that the magistrate who issued the warrant, Honorable Russell Floyd, is also a practicing attorney, the evidence is clearly susceptible of the inference that he was contacted in his capacity as magistrate, rather than as an attorney for legal advice. Even if he were consulted as an attorney, the evidence does not disclose that either all of the facts, or the actual belief of the appellant were made known to him. Mr. Webster testified as follows:
“Q. What did you tell Mr. Floyd about this matter? (referring to the magistrate.)
“A. I told Mr. Floyd we’d gotten the title back with a lien on it to the Floyd Motor Company and I wanted to see what we could do about collecting it.
“Q. Did you tell him about your trips'to see Mr. Parrott?
“A. Yes, sir.”
Moreover, the record does not disclose that the magistrate actually advised appellant to prosecute or that it had probable cause for doing so. The gist of the advice that he gave Mr. Webster was merely that he was entitled to a warrant if he wanted it. It does not appear anywhere that Webster fully disclosed to the magistrate everything that appellant knew, or should have known about the matter, or his belief that the entire matter was the result of- a misunderstanding between Floyd and respondent, rather than any conscious wrongdoing on the part of the respondent.
The weight of authority is that the advice of a magistrate is not available as a defense to a defendant in a suit for malicious prosecution. 34 Am. Jur. 749, Malicious Prosecution, Section 73. The fact that the magistrate happens to be also a lawyer has been held not to change the rule for the reason that the policy of the law forbids the magistrate to act as an attorney or to advise in regard to a prosecution to be instituted before him, and for the further reason that in giving advice, the magistrate is not acting in the capacity of an attorney.
*332■ Far from the evidence being susceptible of no other reasonable .inference than that there was probable cause in this case, I think the evidence tends to show a reckless and wanton abuse of criminal process, without any regard to the guilt, or innocence, of the respondent or the consequences to him.
' For all of the foregoing reasons, I most respectfully dissent.
Lewis, J., concurs.