Seaboard Oil Co. v. Cunningham

• Citation: 51 F.2d 321
• Decision Date: 07 August 1931
• Docket Number: No. 5976.,5976.
• Parties: SEABOARD OIL CO. v. CUNNINGHAM.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

51 F.2d 321 (1931)

SEABOARD OIL CO. v. CUNNINGHAM.

No. 5976.

Circuit Court of Appeals, Fifth Circuit.

June 22, 1931.

Application for Rehearing Denied August 7, 1931.

Julian Hartridge, of Jacksonville, Fla., for appellant.

R. A. Hendricks, of Miami, Fla. (Hendricks & Hendricks, of Miami, Fla., on the brief), for appellee.

Before FOSTER, Circuit Judge, and HUTCHESON and SIBLEY, District Judges.

FOSTER, Circuit Judge.

This is a suit to recover damages for malicious prosecution and false arrest. Demurrers to the complaint were overruled, and issue was joined on a plea of not guilty. The case was tried to a jury, and resulted in a verdict in favor of appellee for $5,318, on which judgment was entered. Error is assigned to the action of the court in overruling the demurrers.

Undoubtedly it is essential for the plaintiff, in an action for false arrest or malicious prosecution, to allege and prove both malice and want of probable cause, but malice may be inferred from want of probable cause. Stewart v. Sonneborn, 98 U. S. 187, 25 L. Ed. 116.

The declaration in five counts, with sufficient detail to identify the proceedings, substantially alleges that appellant, through an authorized agent, instigated three criminal prosecutions against appellee charging him with issuing worthless checks; that he was arrested and held to bail; that he waived preliminary examination in one cause and was remanded for trial; that he was acquitted by a jury in one case and the other two were nolle prosequied; that he was damaged; and that the prosecutions were without probable cause and malicious.

It is contended that, because appellee waived examination and was committed for trial, probable cause was conclusively shown; and that the allegation that the prosecution was without probable cause and malicious is a mere conclusion of the pleader and insufficient.

While there are authorities to the contrary, the rule is well established that a general allegation that the prosecution was malicious and without probable cause is an averment of ultimate facts, and is sufficient. It is difficult to see how the pleader could allege specific facts without attempting to negative every possible defense before it was raised, which he is not required to do. General allegations of fraud or knowledge of the innocence of the accused would add nothing material to the complaint. Nor does the allegation that the appellee waived preliminary examination and was committed for trial destroy the general averment. That fact would be merely prima facie evidence of probable cause. Stainer v. San Luis Valley Land & Mining Co. (C. C. A.) 166 F. 220; 38 C. J. 464, § 127B. It was not error to overrule the demurrers.

Error is assigned to the refusal to direct a verdict for the defendant at the close of the evidence and to a certain portion of the charge given. These may be considered together.

The following facts appear without dispute: Cunningham was the proprietor of a gasoline filling station in Miami, Fla., conducted in the name of the Tamiami Auto Supply, Inc. The management of the station was intrusted to Roy E. Shaw, an employee. Cunningham had another place of business across the street from the station. Shaw purchased all the supplies needed, and on his approval the bills were paid by Cunningham by check. Cunningham bought all his gasoline and other petroleum products from the Seaboard Oil Company. He was prohibited from buying from any one else by a condition of the lease of the station. Granberry was the district manager of the Seaboard Oil Company. Keener was the local manager or agent. Huffman was the book-keeper and Brooker was the tank wagon driver. Cunningham issued three checks, dated May 23, May 24, and May 25, 1929, on the Third National Bank of Miami, payable to the Seaboard Oil Company, signed by the Tamiami Auto Supply, Inc., by himself as general manager. These checks were in payment for supplies purchased, and were given to Brooker, who made the delivery. They were deposited by the Seaboard Oil Company in the Bank of Bay Biscayne. In the usual course of clearance payment was refused for want of sufficient funds. On or about May 25, 1929, Granberry and Keener consulted Menser, assistant county solicitor of Dade county, Fla., about the dishonored checks. On or about the 1st day of June Granberry and Keener also consulted Hargrett, a practicing attorney, about the same checks. A notice in statutory form was prepared by Hargrett and served on Cunningham advising him that the following checks had been dishonored, to wit, checks dated May 20, May 23, two on May 24, and four on May 25, 1929, for the following amounts respectively: $73.92, $133.34, $141.02, $23.50, $13.18, $120.74, $69.08, $7.74, a total of $582.50. Thereafter, on June 3, 1929, Keener made affidavit before a justice of the peace charging Cunningham with violating section 7920, Compiled General Laws of Florida 1927. This charge was based on the check for $133.34, dated May 23, 1929. Cunningham was promptly arrested on this charge and held to bail for trial before the criminal court of Dade county. On June 8, 1929, Taylor, county solicitor, filed two information against Cunningham, based on the checks dated May 24, for $141.02, and May 25, for $120.74, charging violations of section 7922, Compiled General Laws of Florida 1927. Cunningham was also arrested on these two information. He was put on trial on one of the information, and was acquitted by the jury, whereupon the assistant county solicitor nolle prosequied the other two charges.

Appellant, the Seaboard Oil Company, contends that, notwithstanding the termination of the prosecutions favorably to Cunningham, there was probable cause, and it acted upon the advice of counsel. However, appellee, Cunningham, contends that there was want of probable cause because he had an agreement with the Seaboard Oil Company to accept his checks, some of them postdated, and, if they were not paid when first presented, to hold them and redeposit them, when they would be paid. The evidence on these points is in conflict. We may briefly review it.

Shaw testified that he went to work for Cunningham about March 1, 1929; that on March 5 he had a conversation with Granberry about the financial condition of the Tamiami Auto Supply, Inc., and told him to "go easy with us until we get started"; that Granberry knew that they did not have funds and had had lots of checks turned down; that, if one was turned down, it would be redeposited and taken care of on the redeposit; that the three checks upon which Cunningham was prosecuted were given under the same understanding and agreement that the checks prior to that time had been given; that the checks turned down and redeposited were always made good; that there was no express agreement, but the Seaboard Oil Company had never stopped them from doing business in that way; that a check for part payment of the account had been sent to the Seaboard Oil Company at Jacksonville and had been refused; that, if the checks upon which Cunningham was prosecuted had been redeposited, they would have been paid in the usual manner; that Granberry knew that he only approved the bills and had no authority to draw checks; that Granberry had no right to make demand upon him for payment of the checks. In general, the testimony of Cunningham confirmed Shaw as to the method of doing business.

Granberry testified that he did not have any agreement with Cunningham or Shaw to accept checks in payment of merchandise and not as cash, to be redeposited if not paid; that all the credits went through the Jacksonville office; no one was authorized to extend credit but himself; that they had threatened prosecution of Cunningham on account of prior checks, but no prosecution was ever instituted; that he had to discontinue to take checks and demanded cash; that Shaw had asked him not to do that, as it worked a hardship on them, and he would see that no more checks were turned down; that he had never knowingly taken a postdated check.

Keener and Huffman also testified that there was no agreement such as outlined by Shaw, and that neither of them had ever taken a postdated check.

Brooker, who made deliveries and received the checks, testified that he looked at each check to see if it was postdated; that he had never taken a postdated check; that he would make deliveries in the morning and go across the street to Cunningham to get the check; that, if Cunningham was not there, he would return in the afternoon or the next day.

To rebut the testimony of Brooker and Huffman, thirty-four checks were offered in evidence. Indorsements on the backs of these checks indicated that all except one had been postdated, as they were deposited prior to the date shown on the face. Twenty-six of these checks were dated from January 18 to March 6. This last check was deposited on March 4, a day before Shaw had his conversation with Granberry. Seven of the checks were dated from March 5 to March 12, the day of the said conversation or subsequent thereto. One check was dated May 8, and apparently was not postdated. At any rate, it was not deposited until May 10. It was then dishonored and was redeposited May 17 and was paid May 20, the same date as the first check included in the notice of dishonor set out above. It was not shown whether the checks included in the said notice were postdated. However, it may be presumed that some of them were, as Granberry and Keener would hardly have complained to the county solicitor on May 25 about the nonpayment of a check dated that day or even a day or two before.

Evidence was offered to show malice. Shaw testified that Granberry made an appointment with him and Cunningham; that he kept it with Shaw, but declined to see Cunningham and said, "to Hell with Cunningham. I am going to give him the works." Cunningham testified Granberry was present when he was arrested and took him to jail in his automobile. Granberry...