American Surety Co. v. Pryor, 6 Div. 410

CourtSupreme Court of Alabama
Citation115 So. 176,217 Ala. 244
Docket Number6 Div. 410
PartiesAMERICAN SURETY CO. v. PRYOR.
Decision Date23 June 1927

115 So. 176

217 Ala. 244

AMERICAN SURETY CO.
v.
PRYOR.

6 Div. 410

Supreme Court of Alabama

June 23, 1927


Rehearing Denied Jan. 28, 1928

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

Action for malicious prosecution by W.F. Pryor against the American Surety Company and others. From a judgment for plaintiff, the named defendant appeals. Reversed and remanded.

Brown, J., dissenting.

Anderson, C.J., and Gardner, J., dissenting in part.

Plaintiff's evidence that officer refused to allow him to remove handcuffs to eat held admissible in malicious prosecution.

Statement by SOMERVILLE, J.:

The plaintiff was an employee of the Standard Oil Company at Montgomery, and the defendant was surety on his bond for the faithful discharge of his duties.

In August, 1920, the employer company discovered irregularites and shortages in the business conducted under Pryor, and, after investigation by its district manager, D.H. Bohler, responsibility was charged against [115 So. 177] Pryor, and he was discharged from his employment.

The employer company then demanded and received from the surety company the sum of $1,963.61 as indemnity for the shortages of Pryor, and Bohler made to J.V. Keating, the traveling inspector of the surety company, the following written statement of the facts in the case:

"Standard Oil Company
"Birmingham, Ala., May 13, 1921.
"File No. 1260. W.F. Pryor.
"Mr. J.V. Keating, Service Manager, American Surety Company, Montgomery, Ala.--Dear Mr. Keating: Your letter of May 11th, replying to ours of May 10th, received. While we do not think it necessary to submit a written statement, yet since you insist upon such a procedure, we are giving you hereinafter, the most important facts in connection with the Pryor shortage:
"Mr. W.F. Pryor was installed as our Montgomery agent on September 1, 1919. He was checked out on August 17, 1920, but we paid him his salary up to and including August 31st, 1920. Mr. D.G. Hubert, former agent Montgomery, and at present connected with our Birmingham office, took the inventory on August 17, 1920, on which Mr. Pryor was checked out. From the time of Mr. Pryor's installation up to and including June 30, 1920, the stocks, fireproof and crown gasoline, checked out reasonably satisfactorily. The audits of these stocks during that period, however, were made in the Birmingham office by inventories furnished by Mr. Pryor or his clerks. The inventory as of July 31, 1920, was taken by our salesman, Mr. A.L. Gibson, together with Mr. Pryor. When we applied inventory dated July 31, 1920, taken by our salesman, Mr. A.L. Gibson, we developed a shortage of approximately: Fireproof oil (kerosene) 2,000 gallons, crown gasoline 4,400 gallons.
"We took up with Mr. Pryor the question of this loss, and he denied emphatically that any shortage actually existed, but insisted that there was something wrong with the accounting. He finally checked over his stock himself, and practically verified our calculations. He stated he was unable to explain what was evidently an actual shortage. We finally sent Mr. Hubert from this office at Birmingham to investigate, and he developed that the inventory as of June 30th had been changed or plugged. It is apparent that, when Mr. Pryor took the inventory on June 30th, he recorded on his inventory sheet the correct number of inches in each tank, but, after figuring on the stocks, he found that to submit the inches he had actually taken would reveal the loss, so he changed the inches in the tankage on the original sheet of the inventory he sent to this office, so as to cover up the loss for June. The carbon copy of the inventory which was retained at Montgomery was not changed, and it was found that, had the inches shown on the carbon copy at Montgomery been applied, then, as already stated, we would have found this loss in June. It is therefore quite apparent that Mr. Pryor had knowledge that this loss existed, at least in June. The inventory of June 30th, original and duplicate, which was changed, the original, which we use in this office, showing one thing, and the carbon retained at Montgomery showing another, was submitted with other evidence to our home office at Louisville, so we assume that your company is in possession of these documents.
"Mr. Pryor, as agent, had $200, which we termed station cash fund, which we supplied for current operating expenses. When we checked him out, he was short this entire amount. There was also what we term tank wagon drivers' cash fund $40, which Mr. Pryor was likewise short. Mr. Pryor had been furnished with a $25 salesman's cash fund, to defray his current expenses; he was short this amount.
"Mr. Pryor entered into secret agreement with the Sweet Dreams Company, Montgomery, to refund them 1 cent per gallon on all kerosene they purchased from this company. This may not be regarded strictly as a dishonest act, but it was certainly a positive violation of this company's instructions. At the time of Mr. Pryor's leaving the company, they had purchased 4,950 gallons kerosene, on which quantity Mr. Pryor had not given them refund of 1 cent per gallon, so we had to refund them $49.50.
"There is a check transaction, J.S.J. Sanders, Victoria, Ala., account Gilbert & Barker. It appears that the amount of this check was misapplied. In order that you may understand this, I am attaching copy of our letter dated January 19, 1921, addressed to Mr. S.W. Coons, our president, subject 'J.S.J. Sanders, Victoria, Ala., account G & B.'
"Mr. A.R. Gilbert, ex-tank wagon driver, has made affidavit to the effect that on one or more occasions he has taken gasoline from plant, sold the gasoline, and turned the proceeds over to Mr. Pryor. No record was made of the delivery to him at the plant, and no record was made of the sale on the regular form, but the gasoline was loaded into the wagon, hauled, and sold, and the money turned over to Mr. Pryor.
"Very truly yours,
"[Signed] D.H. Bohler, District Mgr."

This statement was made at the request of Keating, with a view to getting the case before the solicitor for his investigation.

As to the attitude of the defendant company, its board chairman, in December, 1920, wrote to the employer company as follows:

"If Pryor has been an embezzler of your money, or property, as we believe, it does not seem right that he should go unpunished if his offense against the state of Alabama could be proved, so we suggested that your company lay all the data and evidence before the local prosecuting attorney, and let that official determine whether there have been infractions of the criminal laws of the state of Alabama, and, if so, upon his direction to cause your employees to appear and testify on information and belief as to the facts in their possession, to the end that the state might prosecute him
in such manner as the prosecuting attorney might elect. You perceive that this company has no evidence. It has no admissions of any kind of the delinquent. It is merely surety, and its employees are one step removed from the original evidence, documentary or otherwise, which is in the possession of your company. In other words, the state requires first hand, not secondary, evidence.
"Prosecutions are difficult in the South, especially where thefts have been by employees of corporations, railroads, and oil companies, particularly, [115 So. 178] and local juries are very lenient with those who misappropriate property of corporations, but it would seem to be worth while to submit all the data in this case, with the names of witnesses, to the prosecuting attorney, to see whether this man, Pryor, has offended against the state of Alabama, and can be successfully prosecuted by that official for his crime."

The events leading up to the finding of the indictment against plaintiff are thus narrated by W.T. Seibels, the state's solicitor:

"I do recollect of having a conversation with Mr. Bohler some time during 1921 with reference to Mr. Pryor and the conduct of his agency for the Standard Oil Company in Montgomery. It was some time, I think, in early March or in February, late February, of 1921, I have not got a very good recollection, gentlemen of the jury, but this is the best of my recollection, which I think is substantially true: Mr. Bohler came to my office, I think, the first time either alone or with Mr. Cravey. Cravey had taken charge of the local office, the Standard Oil Company office, at that time. He reported that he had made an investigation of that gentlemen's account, Pryor's account, and that it appeared to him from his investigation that there was a shortage of something like $1,700 worth of oil and $250, approximately, of cash money which was put into his custody to do the local daily business of the company; and he said that he--he just gave it to me for what it was worth--and he gave me the names, I think, of some witnesses and of the people who worked at the Standard Oil Company's office there at Montgomery at that time with the defendant Pryor. I don't know how long he stayed in my office. He asked me if I thought it was worth investigating, and I told him I thought it was, and that he would hear from me later, some time before the grand jury met. He signified that he might come back to see me again. I don't know whether I took the names at that time of all the witnesses or not. Subsequent to that time he came to my office with Mr. Keating, whom I had never seen. I had seen him before, but that was the first time he came there; he came there with Mr. Bohler. And I think at that time Mr. Bohler had a report of an inventory which Pryor made to the Birmingham office. I think it from my recollection. I am sure that he had a report
...

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19 practice notes
  • Auburn Medical Center, Inc. v. Andrus, No. Civ.A. 97-D-192-E.
    • United States
    • United States District Courts. 11th Circuit. Middle District of Alabama
    • June 12, 1998
    ...549, 114 So.2d 555 (1959). Accordingly, malicious prosecution actions face stringent limitations. Page 1300 American Surety Co. v. Pryor, 217 Ala. 244, 115 So. 176 (1927); see also Jordan v. Empiregas, Inc. of Belle Mina, 337 So.2d 732 (Ala.1976). In Boothby Realty Co., Justice Merrill expl......
  • Alabama Power Co. v. Neighbors
    • United States
    • Supreme Court of Alabama
    • August 21, 1981
    ...484 (Ala.1977); W. Prosser, Handbook of the Law of Torts, § 119, pp. 835-38 (4th ed. 1971). This Court, in American Surety Co. v. Pryor, 217 Ala. 244, 115 So. 176 (1927), discussed the rule as The general rule has been declared based upon considerations of public policy and supported by man......
  • Bryant v. Hartford Fire Ins. Co., 8 Div. 600.
    • United States
    • Supreme Court of Alabama
    • February 28, 1935
    ...103 Ala. 345, 354, 15 So. 663, 49 Am. St. Rep. 32; American Surety Co. v. Pryor, 211 Ala. 114, 99 So. 636; American Surety Co. v. Pryor, 217 Ala. 244, 115 So. 176; Smith v. Dollar, 223 Ala. 661, 138 So. 277; Daniel v. Goodyear Tire & Rubber Co., 225 Ala. 446, 143 So. 449; United States Cast......
  • Boothby Realty Co. v. Haygood, 6 Div. 402
    • United States
    • Supreme Court of Alabama
    • September 17, 1959
    ...have been fully complied with.' 34 Am.Jur., Malicious Prosecution, § 5; 54 C.J.S Malicious Prosecution § 3; American Surety Co. v. Pryor, 217 Ala. 244, 115 So. 176. One of the reasons for this rule is that public policy requires that all persons shall resort freely to the courts for redress......
  • Request a trial to view additional results
19 cases
  • Auburn Medical Center, Inc. v. Andrus, No. Civ.A. 97-D-192-E.
    • United States
    • United States District Courts. 11th Circuit. Middle District of Alabama
    • June 12, 1998
    ...549, 114 So.2d 555 (1959). Accordingly, malicious prosecution actions face stringent limitations. Page 1300 American Surety Co. v. Pryor, 217 Ala. 244, 115 So. 176 (1927); see also Jordan v. Empiregas, Inc. of Belle Mina, 337 So.2d 732 (Ala.1976). In Boothby Realty Co., Justice Merrill expl......
  • Alabama Power Co. v. Neighbors
    • United States
    • Supreme Court of Alabama
    • August 21, 1981
    ...484 (Ala.1977); W. Prosser, Handbook of the Law of Torts, § 119, pp. 835-38 (4th ed. 1971). This Court, in American Surety Co. v. Pryor, 217 Ala. 244, 115 So. 176 (1927), discussed the rule as The general rule has been declared based upon considerations of public policy and supported by man......
  • Bryant v. Hartford Fire Ins. Co., 8 Div. 600.
    • United States
    • Supreme Court of Alabama
    • February 28, 1935
    ...103 Ala. 345, 354, 15 So. 663, 49 Am. St. Rep. 32; American Surety Co. v. Pryor, 211 Ala. 114, 99 So. 636; American Surety Co. v. Pryor, 217 Ala. 244, 115 So. 176; Smith v. Dollar, 223 Ala. 661, 138 So. 277; Daniel v. Goodyear Tire & Rubber Co., 225 Ala. 446, 143 So. 449; United States Cast......
  • Boothby Realty Co. v. Haygood, 6 Div. 402
    • United States
    • Supreme Court of Alabama
    • September 17, 1959
    ...have been fully complied with.' 34 Am.Jur., Malicious Prosecution, § 5; 54 C.J.S Malicious Prosecution § 3; American Surety Co. v. Pryor, 217 Ala. 244, 115 So. 176. One of the reasons for this rule is that public policy requires that all persons shall resort freely to the courts for redress......
  • Request a trial to view additional results

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