American Surety Co. v. Pryor

• Decision Date: 17 January 1924
• Docket Number: 6 Div. 986.
• Citation: 211 Ala. 114,99 So. 636
• Parties: AMERICAN SURETY CO. v. PRYOR.
• Court: Alabama Supreme Court

99 So. 636

211 Ala. 114

AMERICAN SURETY CO. v. PRYOR.

6 Div. 986.

Supreme Court of Alabama

January 17, 1924

Rehearing Denied April 17, 1924.

Appeal from Circuit Court, Jefferson County; Roger Snyder, Judge.

Action for damages for malicious prosecution by W. F. Pryor against the American Surety Company, the Standard Oil Company, and D H. Bohler. From a judgment for plaintiff against the American Surety Company, that defendant appeals. Reversed and remanded.

Tillman Bradley & Baldwin, J. D. Rucker, and T. A. McFarland, all of Birmingham, for appellant.

Black Harris & Foster, of Birmingham, for appellee.

This case was submitted under rule 46, and the opinion of the court was delivered by ANDERSON, C.J.:

It may be conceded that upon the trial of one for embezzlement other acts of the accused of a similar nature or character can be shown on the inquiry whether the act in question was done knowingly and intentionally. Lang v. State, 97 Ala 41, 12 So. 183. This evidence, however, is admissible as bearing upon the guilt or innocence of the accused in the criminal prosecution only, and not necessarily in a suit for malicious prosecution, as the guilt or innocence was adjudicated by the verdict in the criminal case, but, notwithstanding the acquittal of the accused in the criminal case when he sues for a malicious prosecution, the defendant in said suit can show that there was probable cause for believing that the offense had been committed when the prosecution was begun, and can show all pertinent facts within his knowledge at the instigation of the prosecution, but not those which were not known to him at the time although the same may have been admissible upon the trial of the criminal charge. Hanchey v. Brunson, 175 Ala. 236, 56 So. 971, Ann. Cas. 1914C, 804. There was no showing made that the other acts of conversion or embezzlement, sought to be brought out upon the cross-examination of the plaintiff, were known to the appellant's agent, who is charged or claimed to have participated or aided in the prosecution at the time of doing so, and the trial court cannot be put in error for sustaining the plaintiff's objections to these questions. Nor was such an inquiry competent as affecting the credibility of the plaintiff who was testifying as a witness. Clarke v. State, 78 Ala. 474, 56 Am. Rep. 45; Walker v. State, 205 Ala. 197, 87 So. 833.

It may be true that an offer of compromise by one accused of crime, as distinguished from an effort to compromise a civil suit, may be used in evidence as an incriminating circumstance, but the inquiry here was not the guilt or innocence of the plaintiff, but whether or not the defendant's agent, in aiding or bringing about the prosecution, had reasonable grounds to believe that there existed a probable cause of guilt, and the offer of compromise subsequently made to the solicitor could shed no light upon the facts confronting the appellant's agent when the prosecution was begun. Moreover, such an effort by the plaintiff's attorneys to compromise was not binding upon the plaintiff unless he authorized or ratified same.

The plaintiff had the right, under the statute, to propound interrogatories to the defendant and to require the production of letters or documents which had any material bearing upon the questions involved. The letters attached were those exchanged between the agents of the oil company, the appellant, and the solicitor. The two former had a community of interest and a common purpose in view, as the plaintiff was the agent of the oil company, and the appellant was his surety, and these two companies were engaged in ascertaining his shortage and were interested in procuring a restitution from him. The letters were, in a sense, a part of the res gestæ of the prosecution, and had a bearing upon this appellant's connection therewith-whether or not its agent procured or aided and abetted in the prosecution and whether or not he made a full and fair statement of all the facts to the solicitor. We cannot agree with the contention of counsel that these letters were protected from being used as evidence because of being privileged communications. They were no doubt of such a character, and the relationship between the parties was such that they could not be used or looked to as a basis for libel, and were no doubt to that extent privileged communications. But this did not render them privileged against use for evidential purposes in the trial of other issues to which they related. Counsel have cited many cases on this subject, but most, if not all, of them treat such communications as privileged from being used as the foundation of a suit for libel, and if any of them extend the privilege against their use as evidence when the parties are sued for some other tort or transaction not based on writing the letters, but as to which they are material evidence in elucidating the conduct and intent of the parties, and have a bearing upon their connection with the subject-matter of the suit, we would not follow them.

The...