American Ry. ex. Co. v. Stephens

Decision Date16 June 1927
Citation148 Va. 1
PartiesAMERICAN RAILWAY EXPRESS CO. v. J. H. STEPHENS.
CourtVirginia Supreme Court

1. MALICIOUS PROSECUTION — Probable Cause — Advice of Counsel — Commonwealth's Attorney Responsible for Prosecution. — In an action for malicious prosecution, where it was undisputed and uncontroverted that whatever part the defendant, through its officials, took in the prosecution, it acted under the advice of counsel after a full and fair disclosure of all the information it possessed as to the affair, and the testimony of the Commonwealth's attorney was that he was responsible for the indictment and prosecution of the plaintiff, it was not necessary for the court to determine as a matter of law from all the evidence whether there was probable cause for the prosecution. These facts are sufficient to relieve defendant from responsibility.

2. MALICIOUS PROSECUTION — Commonwealth's Attorney Responsible for the ProsecutionCase at Bar. — In the instant case, an action by an express messenger against the express company for malicious prosecution, the assistant prosecuting attorney drew the indictment and the Commonwealth's attorney "put it before the grand jury." There was no evidence to indicate that any of the express company's officials ever urged or even suggested to the Commonwealth's attorney that he prosecute the plaintiff.

Held: That as a matter of law the prosecution was instituted by the Commonwealth's attorney and that he was responsible for the indictment of the plaintiff and that the defendant was not liable.

3. MALICIOUS PROSECUTION — Advice of Counsel — Full Disclosure. A defendant in an action for malicious prosecution had a perfect defense where all through the affair it acted under the advice of counsel, the Commonwealth's attorney and his assistant, who were in possession of all the facts known to the defendant.

4. MALICIOUS PROSECUTION — Probable Cause — Advice of Counsel — Assistant Prosecutor Employed by DefendantCase at Bar. — In the instant case, an action for malicious prosecution by an express messenger against the express company, an assistant prosecutor was employed and paid by the express company. The employment of the assistant prosecutor was upon the suggestion and recommendation of the Commonwealth's attorney. But even if this had not been the fact, if the express company, acting upon the advice of the assistant prosecutor, commenced the prosecution of the plaintiff, defendant still would not have been liable to plaintiff.

5. MALICIOUS PROSECUTION — Probable Cause — No Conflict in the Evidence — Question for Court. — Where there is no conflict of evidence on the question of probable cause, it becomes one of law to be resolved by the Court.

6. MALICIOUS PROSECUTION — Probable Cause — Advice of Counsel. — Where a defendant acts in good faith upon the advice of reputable counsel, after full disclosure of the facts, he is considered to have had probable cause although the advice of counsel may be wrong, and he will not be liable in damages.

7. MALICIOUS PROSECUTION — Probable Cause — Institution of ProsecutionCase at Bar. — In the instant case, an action for malicious prosecution by an express messenger against the express company, the prosecution was not instituted by the express company, and if it had been, the attorney for the Commonwealth and his assistant, employed by the express company, were in possession of all the facts, and, not only advised the prosecution, but assumed full responsibility as officials for it.

Held: That this was conclusive of the question of probable cause and the trial court erred in not setting aside a verdict for plaintiff and entering judgment for the defendant.

Error to a judgment of the Circuit Court of the city of Richmond in an action of trespass on the case. Judgment for plaintiff. Defendant assigns error.

The opinion states the case.

Wyndham R. Meredith and James O. Heflin, for the plaintiff in error.

David Meade White, George B. White and Andrew J. Ellis, for the defendant in error.

CHICHESTER, J., delivered the opinion of the court.

This is an action by J. H. Stephens, hereafter called plaintiff, against American Railway Express Company, hereafter called express company, for malicious prosecution. There was a verdict for $8,000.00 in favor of the plaintiff against the express company, upon which the trial court rendered judgment.

The prosecution upon which this action is based, resulted from a robbery of $37,663.00 from an express car of the express company, on the Norfolk and Western railroad, between Waverly and Petersburg on the night of December 6, 1923. At the time of the robbery the plaintiff was in the employ of the express company as express messenger and was in sole charge of the car and all the express therein, including the large sums of money which were stolen.

The plaintiff, Reynolds, Merhout and Longmire, were indicted and tried for the larceny of this large sum of money, upon the theory that he and those charged and indicted with him had conspired to rob the express car. The plaintiff was acquitted of the charge while the others were convicted. The evidence against the plaintiff was entirely circumstantial. It is not necessary to narrate in detail all the circumstances which pointed to the accused as a party to the crime, or to the evidence which tended to exculpate him, for the reason that we do not have to determine as a matter of law, from all the evidence, whether there was probable cause for the prosecution because it is undisputed and uncontroverted that whatever part the express company, through its officials, took in the prosecution, it acted under the advice of counsel after a full and fair disclosure of all information it possessed as to the affair, and for the further reason that the testimony of the attorney for the Commonwealth himself is that he was responsible for the indictment and prosecution of the plaintiff, and there is no contradiction of this to be found in the record.

Briefly, the facts and circumstances which led to this action on the part of the Commonwealth's attorney were as follows: The robbery took place on a week day when particularly large sums of money were usually sent by the Norfolk banks to the Federal Reserve Bank at Richmond. At Norfolk two bags of money were put by the plaintiff in the key safe and six in the big or combination safe. It was the duty of the money clerk at Norfolk to lock the combination safe, but the plaintiff says he locked it on this occasion and not the money clerk. When the safe was recovered the next day where it had been thrown out of the express car at the time of the robbery, the safe was unlocked and the combination was in perfect order. The testimony of two safe experts was to the effect that this would have been impossible if the safe had been actually locked. The combination to this safe was known only to the money clerks in Norfolk and Richmond. The plaintiff did not know it.

The plaintiff testified at the criminal trial, and in this case, that he had been in the employ of the express company for over ten years. His record had always been good. In answer to the question to tell what happened he said: "The train left at 4:25 and I checked up the money and wrote the money up off my waybills; recorded it on the books. The first stop was Suffolk and on arrival at Suffolk the agent there brought a sealed report and another small parcel of money and I receipted for them and placed them in the small key safe, and then leaving Suffolk the next stop was Wakefield. I didn't put on anything there and wasn't anything taken off, and the next stop was Waverly. On arrival at Waverly the agent at Waverly brought his book out with a small parcel of money for the Petersburg bank and I signed for that and placed that in the key safe, locked it up and picked up my record book. About that time we pulled out from Waverly and I picked up my record book and remittance waybills, sat down on the key safe as a seat and commenced to make out this waybill and enter it on the record book, when a man came in the car, I guess a minute or two after leaving Waverly, and on entering the car I asked him what I could do for him. He says: `Have you got a black dress suit case on here checked from Norfolk to Richmond.' I said: `I will see. My baggage is over there by the door.' I went over to where I had the baggage and looked and I didn't have a black dress suit case checked from Norfolk to Richmond and told him probably it got left and would be on the next train and he said `all right.' He turned around and started towards the end door leading to the colored coach, the door that he came in, passing my small safe and packer. Thinking he was going out of the car I sat down on my small key safe I was using for a seat and began to resume my work; that is, finish writing up the remittance waybill and enter it on my record book, when he turned around and came back and I thought he came back to ask me something else about the suit case, and just as he came back — he was on the left side of me, and I was sitting on the small key safe — he said: `Open up that safe,' referring to the combination safe, and as he said that I looked up and saw that he had me covered with a gun — I was looking down the gun barrel — and I told him — when he said that remark he reached over on the packer — I had my gun, belt and holster lying on the packer right beside me and he was standing right opposite it — he reached over on the packer and grabbed my gun, belt and holster up; it was in the holster. He laid it on a trunk — I had a big drummer's trunk back of me. When he said, `open up the safe,' I said: `I can't open it.' He said: `Yes, you can. Do as I say and I won't hurt you.' I said: `I can't open it; can't anybody do that but the money clerk in Richmond.' He said: `Get up and open the key safe.' I saw I was covered with the gun and I had to do his command. I got up and...

To continue reading

Request your trial
12 cases
  • Truman v. Fidelity & Cas. Co. of N. Y.
    • United States
    • West Virginia Supreme Court
    • 14 Noviembre 1961
    ... ... 54 C.J.S., Malicious Prosecution, Section 48b, 1012; American Railway Express Co. v. Stephens, 148 Va. 1, 138 S.E. 496. The evidence discloses that Attorney Barrett had the benefit of the entire file, including ... ...
  • Bennett v. R & L Carriers Shared Serv. Llc
    • United States
    • U.S. District Court — Eastern District of Virginia
    • 30 Septiembre 2010
    ... ... The Court of Appeals noted American Law Reports' explanation that normally a malicious prosecution plaintiff must show that defendant did more than merely give information that included ... In Am. Ry. Express Co. v. Stephens, 148 Va. 1, 138 S.E. 496 (1927), the Court held that the trial court erred in not setting aside the jury's verdict for the plaintiff and entering ... ...
  • Hamden v. Denny
    • United States
    • U.S. District Court — Western District of Virginia
    • 26 Marzo 2021
    ... ... suggested to [an official] that he prosecute the plaintiff.'" Id ... (quoting Am ... Ry ... Express Co ... v ... Stephens , 148 Va. 1, 138 S.E. 496, 500-01 (1927)). "Probable cause as it relates to malicious prosecution actions is defined as 'knowledge of such a state of ... v ... Pope , 485 U.S. 478 (1988)); (3) the extent and nature of governmental regulation over the institution, American Manufacturers Mut ... Ins ... Co ... v ... Sullivan , 526 U.S. 40, 52 (1999); Haavistola v ... Community Fire Co ... of Rising Sun , Inc ., 6 F.3d 211, ... ...
  • R.M.B. v. Bedford Cnty. (Virginia) Sch. Bd.
    • United States
    • U.S. District Court — Western District of Virginia
    • 11 Marzo 2016
    ... ... suggested to [an official] that he prosecute the plaintiff. See Am. Ry. Express Co. v. Stephens , 148 Va. 1, 138 S.E. 496, 50001 (1927). There are no facts in the record from which a jury could find that Wilson urged Calohan to seek a criminal ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT