Huckestein v. New York Life Insurance

Opinion by

Mb. Justice Fell,

This action was for a malicious prosecution. The plaintiff was arrested and tried for obtaining money from one of the defendants, the New York Life Insurance Company, by a false .pretense. The company authorized its agent, the other defendant, to cause his arrest. If there was a false pretense it was *31 not made to the insurance company, with whom the plaintiff had no dealings whatever, but to a broker who bought the policy of the plaintiff, and who afterwards sold or surrendered it to the company. As to this there was no dispute. The instruction therefore that the prosecution was without probable cause was clearly right, and it was the duty of the court to give it. The question of probable cause is one of law for the court, where the facts relied on to constitute it are admitted or established beyond controversy.

The attempt by the defendants to show that the prosecution was commenced by the advice of counsel, gave rise under the testimony to the inquiries whether there had been a submission of the facts and circumstances to counsel, and a legal opinion sought and acted on in good faith; or whether the counsel who advised the prosecution was in fact the agent of the insurance company with power to act in procuring a release to save it from loss, and that the prosecution was instituted to accomplish this purpose. These questions were submitted to the jury with full and accurate instructions.

The judgment is affirmed.