Appeal
from Circuit Court, Jefferson County; Roger Snyder, Judge.
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
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,
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
that was made by Pryor to the Birmingham office, either that
or a copy. This report,
...
