AAA Employment, Inc. v. Weed

• Decision Date: 10 October 1984
• Parties: AAA EMPLOYMENT, INC. v. James WEED. Civ. 4288.
• Court: Alabama Court of Civil Appeals

Page 428

457 So.2d 428

AAA EMPLOYMENT, INC. v. James WEED.

Civ. 4288.

Court of Civil Appeals of Alabama.

Oct. 10, 1984.

R. Bruce Hall of Conaway, Hall, Carter & Bledsoe, Dothan, for appellant.

Joel W. Weatherford of Farmer, Price, Espy & Smith, Dothan, for appellee.

EDWARD N. SCRUGGS, Retired Circuit Judge.

This is a malicious prosecution case concerning a prior civil action which was filed against Weed by the present defendant, AAA Employment (the agency).

Weed was unemployed and signed an agreement with this employment agency whereby he was to pay certain placement fees to them if he accepted a position which was obtained through their efforts. In the small claims court the agency subsequently sued Weed for $500 for a placement fee and that case was dismissed for want of prosecution on the date that it was scheduled for trial. Weed's action against the agency for the malicious prosecution of the small claims case resulted in a nonjury trial before the circuit court. A judgment was rendered in favor of Weed for $750. The agency appealed and raises three primary issues for our determination--the sufficiency of the evidence as to (1) probable cause, (2) malice, and (3) damages.

Since conflicts occurred in the evidence, we generally summarize only that testimony which tends to support Weed's case in order for us to determine if there was any competent evidence which upholds the judgment of the trial court; and, in viewing the evidence in accordance with the applicable presumptions, the following is pertinently revealed by the record.

The contract between the parties was explained to Weed before its execution. He correctly understood that if he even verbally accepted employment as a result of the efforts of the agency he would be liable for a placement fee. Weed was referred by the agency to a particular prospective employer, Better Brands, and he discussed his possible employment with Adkins, their shop foreman. According to Weed, he did not accept the job that day since he needed to discuss that particular employment with his wife since Better Brands distributed beer. When he saw her shortly after the Adkins interview, Mrs. Weed vetoed that employment on moral or religious grounds. That afternoon, Weed received a telephone call from the agency's secretary, who congratulated him about his obtaining employment with Better Brands, whereupon he informed her that he had not accepted that job. The next day Adkins was informed by Weed that he could not work for Better Brands because of the beverage problem.

Adkins gave a written statement to the agency before they filed the small claims case. Therein, he stated that he had requested the agency to assist him in obtaining a helper, that they sent Weed, and that he and Weed talked about the job. "I was under the impression that he wanted the job." Weed did not appear for work on the following day but later telephoned Adkins and told him that he could not work at a beer company since Mrs. Weed did not approve of that type work.

At the trial Adkins testified to the same facts as were contained in his written statement and he further testified that Weed never filled out an application or signed a time card. He swore that Weed did not ever state to him that he wanted the job or that he would commence work the next morning or at any other time. Adkins called the agency the day following the interview when Weed did not appear for work. Adkins was under the impression that Weed "was going to take the job."

A day or two after the Adkins interview, the secretary of the agency called Weed again and inquired as to why he did not present himself for work at Better Brands, and Weed again told her that he had not accepted the job because of his wife's objections.

A few days later Weed received a collection letter for the placement fee from Palmer, another employee of the agency. Weed testified that he saw Palmer the next day and repeatedly told Palmer, the secretary, and the agency's manager that he had not accepted the Better Brands job and did not owe any placement fee.

Adkins had previously told Weed that Adkins left his work at 4 p.m. It is not controverted by the evidence that around 5 p.m., when Palmer and Weed were discussing whether he had accepted the job, Palmer acted as if he then telephoned and was carrying on a telephone conversation with Adkins in Weed's presence. Palmer told Weed that Adkins said that Weed had indeed accepted the position. However, that same afternoon Weed telephoned Adkins at his home and Adkins denied to him that he had talked to anyone from the agency on that day.

Palmer, with full authority from the agency, signed the small claims complaint against Weed, who employed counsel to represent him in that case. It was later dismissed for want of prosecution.

Many of the above facts were disputed and controverted by the testimony of the agency's witnesses.

To succeed in an action for malicious prosecution based upon a prior civil case, the plaintiff must prove these essential elements: (1) that a civil action was filed by the defendant against the plaintiff, (2) which was instigated by the defendant maliciously and (3) without probable cause (4) with the civil action being terminated favorably to the plaintiff, (5) who suffered damage as a proximate result of the suit. First Shelby National Bank v. Mitchell, 406 So.2d 959 (Ala.Civ.App.1981); Gamble v. Webb Quarterback Club, 386 So.2d 455 (Ala.Civ.App.), cert. denied, 386 So.2d 459 (Ala.1980); Ford Insurance & Real Estate Co. v. Thrasher, 45 Ala.App. 592, 234 So.2d 590 (Ala.Civ.App.1970).

The question evolves whether the agency, under the facts as we have summarized them, had probable cause to institute the small claims civil action against Weed. If any necessary particular fact upon the issue of probable cause was disputed in and by the evidence, a question of fact was presented for the decision of the trier of facts, which was the trial court in this case. Key v. Dozier, 252 Ala. 631, 42 So.2d 254 (1949); Gamble v. Webb Quarterback Club, supra. Since an ore tenus nonjury trial was conducted before the trial court, its findings of fact are...