Angelo Radochio v. I. Katzen.

• Decision Date: 21 November 1922
• Citation: 92 W.Va. 340
• Parties: Angelo Radochio v. I. Katzen.
• Court: West Virginia Supreme Court

92 W.Va. 340

Angelo Radochio

v.I. Katzen.

Supreme Court of Appeals of West Virginia.

Submitted November 14, 1922.

Decided November 21, 1922.

1. Malicious Prosecution Elements Stated.

In an action for malicious prosecution, plaintiff must show: (1) that the prosecution was set on foot and conducted to its termination, resulting in plaintiff's discharge; (2) that it was caused or procured by defendant; (3) that it was without probable cause; and (4) that it was malicious. If plaintiff fails to prove any of these, he can not recover, (p. 344).

2. Same "Probable Cause" Defined.

Probable cause for instituting a prosecution is such a state of facts and circumstances known to the prosecutor personally or by information from others as would in the judgment of the court lead a man of ordinary caution, acting conscientiously, in the light of such facts and circumstances, to believe that the person charged is guilty, (p. 345).

3. Same Prosecution for Selling Intoxicating Liquors Held Not Without Probable Cause.

A wholesale dealer in soft drinks sold a drink of the nearbeer variety, called "Savoy Special", put up in bottles labelled "Approximately.2 3/4 per cent of alcohol by volume"; the decimal point before the figures on the label was so dim, or so small in proportion to the size of the other figures, as to escape the notice of an ordinarily prudent man. The dealer sold the drink, believing and representing it to contain approximately two and three-fourths per cent alcohol, and his customers were misled thereby; one of them gave one of the bottles so labelled to defendant, who, not noticing the decimal point, exhibited it to the prosecuting attorney. That official, also deceived by the label, directed defendant to a state prohibition officer, who, likewise deceived, swore out a warrant for the arrest of plaintiff on a charge of selling intoxicating liquors contrary to law. In an action against defendant for maliciously causing the arrest of plaintiff, upon such charge, the facts and circumstances shown do not indicate a want of probable cause; and a verdict for plaintiff is properly set aside by the trial court, (p. 346).

Error to Circuit Court, McDowell County.

Action by Angelo Radochio against I. Katzen. To review an order setting aside verdict for plaintiff and granting him a new trial, the defendant brings error.

Affirmed.

Strother, Sale, Curd & Tucker and Strother, Taylor & Taylor, for plaintiff in error.

G. W. Howard, and Litz & ITarman, for defendant in error.

Meredith, Judge:

Plaintiff brought his action in the circuit court of McDowell County against defendants, I. Katzen and S. M. Iaf olla, charging that they had maliciously and without probable cause procured a warrant for and caused plaintiff's arrest on the charge of having sold certain beverages containing more alcohol than the law permitted. The action was dismissed as to Iafolla. Upon the trial, the jury returned a verdict of $1000 against Katzen. On his motion, the court set aside the verdict and granted him a new trial. Plaintiff obtained a writ of error.

Was the court justified in setting aside the verdict?

Plaintiff was a wholesale dealer of soft drinks in the city of Welch. Defendants were partners engaged in the same business. An important branch of the business in that vicinity was the distribution of various kinds of beverages of the "near-beer" variety. About May 4, 1920, plaintiff received from Chicago a carload shipment of bottled drinks labelled "Savoy Special." While engaged in unloading this shipment preparatory to delivery in trucks to his store and to his customers, he was arrested by a prohibition officer, David C. Collins, under a warrant charging him with selling intoxicating liquors, contrary to statute. The "Savoy Special," in the car and unloaded, amounting to 72 cases, was seized under a search and seizure warrant and stored in the court house. This warrant was issued by the mayor, John Summers; and the plaintiff was arrested and brought before him for a hearing. Having given satisfactory bond, to secure his appearance when required, plaintiff was released. The hearing was continued, and the prosecuting attorney, having found that the "Savoy Special" contained less than one-half of one per cent alcohol, dismissed the proceedings.

His arrest, plaintiff avers, was instigated by the complaints and inducements of the defendant Katzen. As will appear, this averment was strongly supported by the proof. On the day preceding the arrest, one, Ellis Wheby, a retailer in soft drinks, purchased two cases of the "Savoy Special" from plaintiff and it was delivered to him at his store. On examining the labels on the bottles, Wheby at once noticed certain words and figures which he read "Two and three-quarters per cent of alcohol by volume.'' He immediately wrote plaintiff that he was afraid to handle a beverage of that character and requested that he be allowed to return the two cases. The next morning, having received no reply, he took the matter up with the defendant Katzen, with the view, as he claims, of obtaining advice as to what to do. Katzen showed immediate interest and asked permission to examine and sample the drink. Having satisfied himself both from examination of the labels and the taste of the drink, a few bottles of which made him dizzy, that Wheby's fears were indeed well founded, Katzen decided to bring the matter to the attention of the authorities. Although Katzen had at one time been a prohibition officer, he was quite frank in admitting that his actions in this affair were based solely on business motives; that as a dealer in soft drinks, it was his business to take care that no competitor introduced real beer into the field. His first step was to carry a bottle to the prosecuting attorney, G-. L. Counts. Counts read the label, but inasmuch as it was his policy to institute proceedings only after chemical analysis, suggested that the matter be deferred until a session of the grand jury to be held in a short time. Delay was not agreeable to Katzen, however, and he suggested a warrant for plaintiff's arrest. Counts saw no objection to this course, and told him to get a warrant if he wanted to, referring him. to Collins, the prohibition officer.

Katzen came upon Collins in the street, and suggested action in the matter. Collins desired the advice of the prosecuting attorney, and upon a second meeting with Katzen they went together to the office of Counts. Collins is not positive that Katzen suggested a warrant to him, but his testimony leaves no doubt as to Katzen's insistance upon action. After consultation with Counts, and with his approval, Collins and Katzen went to the office of the Mayor, before whom the warrant was issued upon sworn complaint of Collins, Katzen not desiring to "have anything to do with it," though he apparently took a leading part in the conversation with the Mayor.

The immediate and natural result of this arrest was the refusal on the part of plaintiff's customers to purchase further quantities of the beverage in question, and as it was upon the sale of near-beer that plaintiff's business depended, he was, if he is to be credited, practically without means of livelihood until his ultimate release from the charges against him, a period of sixty days. This discharge came about in the manner following:

A short time after the arrest, a representative of the manufacturer of the "Savoy Special" came to Welch, explained to the prosecuting attorney the nature of the beverage, and for the first time, so far as the record shows, that official and the other parties interested were advised as to the true purport of the labels on the bottles. As...