195 La. 347

#### EUSANT v. UNITY INDUSTRIAL LIFE INS. AND SICK BENEFIT ASS’N OF NEW ORLEANS, Inc.

No. 35013.

Supreme Court of Louisiana.

Feb. 5, 1940.

Application for Rehearing Withdrawn May 28, 1940.

*555Frank S. Normann and Harold M. Rouchell, both of New Orleans, for appellants.

O’Keefe, Davison & Granzin, of New Orleans, for appellee.

FOURNET, Justice.

Plaintiff, having been charged jointly with her attorney at the instance of the defendant Unity Industrial Life Insurance and Sick Benefit Association of New Orleans, Inc., through defendant Henry L. Wilcox, its manager, with the crime of forging and uttering as true the name of the beneficiary of life insurance policy No. 28,377, issued by the company to Elisker Niles, assured, which charge was nolle prosequied by the office of the district attorney for Orleans Parish, seeks to recover damages against the defendants for malicious prosecution.

The defense is that the charge was made without malice and with probable cause.

There was judgment in the lower court against defendants in solido in the sum of $250, and they have appealed.

The history of the case reveals that the plaintiff, claiming to be the named beneficiary in the policy, made demand, through her attorney, for payment of the amount due the beneficiary under the terms of the policy, and that when the company failed to pay the amount promptly she filed suit. The defendant company’s records did not show that plaintiff was the beneficiary named in the policy, and, upon examination, it was discovered that the name of the beneficiary had been changed in an irregular manner, in that the name of plaintiff was written in lead pencil over the name of the original beneficiary which was written in the policy with pen and ink. The original name was not erased. These facts aroused the suspicion of the defendant company and, after a discussion of the matter with its private attorney and acting upon his advice, it submitted the writing on the policy, together with the signature and admitted writings of plaintiff’s attorney, to Dr. L. Schulhofer of Birmingham, Alabama, an examiner of questioned documents, who furnished them with an apodictic report in which he expressed the opinion that plaintiff’s attorney had written plaintiff’s name as beneficiary in the policy. Upon receipt of this report, defendant Wilcox, accompanied by his attorney, submitted to the first assistant district attorney the entire record, consisting of plaintiff’s petition, the policy sued on, the report of Dr. Sdiulhofpr, and the documents attached to his report, including the admitted writings of plaintiff’s attorney. After looking over these documents, the assistant was of the opinion that a crime had been committed and that a charge should be made against the plaintiff and her attorney, but before accepting the charge, he placed the matter before the district attorney for his attention. Several days thereafter defendants were advised and requested by the district attorney’s assistant to prefer charges against plaintiff and her attorney, whereupon defendant Wilcox signed the affidavit charging'plaintiff and her attorney *556with the crime of forging and uttering as true the name of the beneficiary in the life insurance policy and the district attorney’s assistant to whom the matter was submitted for action filed the required bill of information against them.

Plaintiff, an old colored woman seventy-one years of age, was arrested in the court room on the morning of March 2, 1937, while waiting for her suit against the defendant company to be tried in the First City Court for New Orleans. She was placed in the Third Precinct Police Station, remaining there from ten-thirty o’clock in the morning until two in the afternoon, when she was transferred to the Parish Prison, where she remained until about five o’clock on the afternoon of March 4, 1937, when she was released after furnishing bond.

On May 25, 1937, the case against plaintiff was nolle prosequied by the assistant district attorney who had filed the bill of information against her, the reason for such action being that' there was not sufficient evidence. The present suit was filed on June 28, 1937.

While the appeal was pending here, Annie Jacob Eusant, plaintiff and appellee, died, and, by order of this court, the duly qualified administrator of her succession, Walter Robinson, was substituted as plaintiff and appellee in her place and stead. For the purposes of this case, however, when plaintiff is referred to herein, the reference is to the original plaintiff, Annie Jacob Eusant.

“An action.for maliciously putting the law in motion lies in all cases where there is a concurrence of the following elements: (1) The commencement or continuance of an original criminal or civil judicial proceeding. (2) Its legal causation by the present defendant against plaintiff who was defendant in» the original proceeding. (3) Its bona fide termination in favor of the present plaintiff. (4) The absence of probable cause for such proceeding. (5) The presence of malice therein. (6) Damage conforming to legal standards resulting to plaintiff. * 3⁄8 * ” 38 Corpus Juris 386, section 5.

This court.in the early case of Barton v. Kavanaugh, 12 La.Ann. 332, held that the plaintiff must not only prove malice, but must also, show that there was no probable cause for the prosecution. Both must concur. This rule of law has never been deviated from, the latest expression to that effect being found in the case of Urbanek v. Moore, 179 La. 300, 154 So. 4. See, also, Womack v. Fudikar, 47 La.Ann. 33, 16 So. 645; Mosley v. Yearwood, 48 La.Ann. 334, 19 So. 274; Lang v. DeLuca, 108 La. 304, 32 So. 329; Carnes v. Atkins Bros. Co., 123 La. 26, 48 So. 572; Graham v. Interstate Electric Co., 170 La. 392, 127 So. 879.

It is the settled jurisprudence of this court that “ Where a party has communicated to his counsel all the facts bearing on the case of which he has knowledge, or could have ascertained by reasonable diligence and inquiry, and has acted upon the advice received honestly and in good faith, the absence of malice is established, the want of probable cause is negatived, and the action for malicious prosecution will not lie;’ and a fortiori is this the case where the counsel consulted is the public prosecutor.” Sandoz v. Veazie, 106 La. 202, 30 So. 767. “Probable cause does not depend upon the actual state of the case in point of fact, but on the honest and reasonable belief of the party prosecuting.” Graham v. Interstate Electric Co., supra [170 La. 392, 127 So. 880]. See, also, Staub v. Van Benthuysen, 36 La.Ann. 467; Enders v. Boisseau, 52 La.Ann. 1020, 27 So. 546; Morgan v. Illinois Central R. Co., 117 La. 671, 42 So. 216.

In the instant case there is no direct or positive evidence whatsoever to show that the defendants in making the charge against plaintiff and her attorney were actuated by malice. Furthermore, according to the facts of this case, as disclosed by the record, defendant did not act without probable cause.

Actions for malicious prosecution “ * * * have never been favored, and in order to sustain them a clear case must be established, when the forms of justice have been perverted to the gratification of private malice and the wilful oppression of the innocent.” Staub v. Van Benthuysen, 36 La.Ann. 467.

For the reasons assigned, the judgment of the lower court is set aside and plaintiff’s suit is dismissed at her cost.

ROGERS, Justice

(dissenting).

I think the judgment of the district court should be affirmed.

The recognized rule that advice of counsel, particularly of a public prosecutor, *557will serve as a defense to an action for damages for malicious prosecution, is subject to the equally well-recognized exception that such advice must be based upon a full disclosure of all facts, made after reasonable diligence to ascertain them and acted upon honestly and in good faith. Mullen v. Gause, 161 La. 461, 109 So. 31; Buchert v. Schumacher, 166 La. 111, 116 So. 718.

Advice of counsel in certain cases, under certain circumstances, gives a qualified protection to their clients in cases of torts, but not to the extent of enabling them to escape liability, though client and counsel are negligent or indifferent to consequences. Lange v. Illinois C. R. R. Co., 107 La. 687, 31 So. 1003, 1004.

In applying these legal principles to the case, I have reached the conclusion that it falls within the exception rather than within the general rule.

As I appreciate them, the facts, as shown by the record, are that the defendant insurance company issued its policy on the life of Elisker Niles and in the space provided for the insertion of the name of the beneficiary, the name of Amos Niles, husband, appears written in ink. Immediately over this, written in lead pencil, appears the word “sister.” In the space set apart for the designation of the relationship of the beneficiary to the assured appears the name, “Annie Jacobs,” also written in lead pencil over the word “husband.” Annie Jacobs and Annie Jacobs Eusant is one and the same person.

On the death of the insured Elisker Niles, plaintiff, through her attorney, made demand upon the insurance company for payment of the indemnity under the policy, and upon her claim being denied, filed suit on the policy in the First City Court of New Orleans. The petition in that case apparently was sworn to by Annie Jacobs Eusant, who signed the affidavit by making her mark. Subsequent to the filing of the suit, the policy, with the alteration or endorsement thereon and specimens of handwriting of plaintiff’s attorney were submitted by defendant to a non-resident handwriting expert. This expert reported that the endorsement on the policy and the handwriting of the attorney was one and the same.

After receiving this report, on advice of its counsel, defendant, through its proper officer,' referred the report and the other documents above mentioned to the office of the district attorney, resulting in the filing of an affidavit against Annie Jacobs and her attorney, charging them with having forged the endorsement, “sister, Annie Jacobs,” written in lead pencil on the policy. Plaintiff was arrested and lodged in jail on the morning her case was fixed for trial in the First City Court, having been pointed out in the courtroom to the arresting officer by the attorney for the insurance company. She remained in jail for a period of forty-eight hours when she was released on bond of $250. Thereafter she was arraigned on the charge and pleaded not guilty, and later the charge was nolle prosequied by the district attorney. This was done because of lack of evidence against plaintiff.

The record shows that plaintiff was an ignorant, country negro woman 71 years of age, living at Darrow, Louisiana, and that she was unable to write. The affidavit attached to her petition filed in the First City Court was signed with her mark. The representatives of the defendant insurance company had this document before them before consulting their counsel, or the district attorney, so that it is clear they knew, or should have known, that since plaintiff was unable to write, it was impossible for her to have written the words which they claim constituted a forgery. Moreover, there appears there was another notation on the back of the policy showing that it was changed to Annie Jacobs “10/6/30, George H. Lewis.” This Lewis was the company’s agent at Darrow where plaintiff resided. It does not appear that when the representatives of the defendant company consulted the district attorney they emphasized the fact that plaintiff could not write and directed his attention particularly to the foregoing notation. Some time after plaintiff was arraigned and pleaded not guilty, George H. Lewis appeared before the district attorney and admitted that the words that plaintiff and her attorney were charged with forging were actually written by him. This admission was made in the presence of the district attorney and of H. L. Wilcox, general manager of the defendant company, and apparently accepted as true, because the charge against plaintiff was nolle prose-quied.

The case impresses me as one in which the representatives of the defendant company did not exert the proper diligence to *558ascertain the facts before consulting the district attorney. They made no serious effort to contact George H. Lewis, and to obtain from him an explanation concerning the alteration in the policy and his no•tation on the back .of the instrument. If they had done this instead of forwarding the papers to a non-resident handwriting expert 'for his expert opinion, they would have discovered the true facts and 'plaintiff would have been spared the humiliation, inconvenience and expense of a criminal charge and the imprisonment thereunder.

The assistant district attorney testified that if his attention had been directed to the signature of George H. Lewis on the back of the policy and had been informed by defendant’s representatives that Lewis was their agent in the country, he “would have possibly asked some questions about Lewis or sent for Lewis.” If this had been done and Lewis had furnished the district attorney before the charge was made with the same information that he furnished him in the presence of the manager of the defendant insurance company after the charge was made, it is clear that he would not have advised the institution of the criminal prosecution against plaintiff.

The term “probable cause,” as used with reference to an action for malicious prosecution, means a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselv.es to warrant a prudent and cautious man to believe that the accused is guilty of the crime with which he is charged. Ramsey v. Knott, 166 La. 52, 116 So. 591.

It is impossible for me to conclude from the evidence adduced in this case that the defendant company honestly believed that plaintiff was guilty of the crime of forgery. The impression the case leaves upon my. mind is that the defendant caused the arrest and prosecution of the plaintiff in order to coerce her to desist from prosecuting her suit to recover the avails of the policy. I do not think that defendant had probable cause for its conduct, and malice may be inferred from want of probable cause. Christian v. Leopold, 170 La. 552, 128 So. 513; Bladg v. Giacomino, 170 La. 638, 128 So. 661.

For these reasons I dissent from the majority opinion herein.