Banks v. Montgomery Ward & Co., 74

• Decision Date: 14 January 1957
• Docket Number: No. 74,74
• Citation: 128 A.2d 600,212 Md. 31
• Court: Maryland Court of Appeals
• Parties: Thelma L. BANKS v. MONTGOMERY WARD & COMPANY, Inc.

Page 31

212 Md. 31

128 A.2d 600

Thelma L. BANKS v. MONTGOMERY WARD & COMPANY, Inc.

No. 74.

Court of Appeals of Maryland.

Jan. 14, 1957.

Stanley G. Robins and John B. Robins, Salisbury (Robins & Robins, Salisbury, and Emerson C. Harrington, Jr., Cambridge, on the brief), for appellant.

William W. Travers, Salisbury (Webb, Bounds & Travers, Salisbury, on the brief), for appellee.

Before BRUNE, C. J., and COLLINS, HENDERSON, HAMMOND and PRESCOTT, JJ.

HAMMOND, Judge.

After a criminal prosecution for giving Montgomery Ward & Company, Inc. a bad check had ended in her favor, Thelma Banks sued the company for maliciously prosecuting her. At the end of plaintiff's case, the trial court ruled there had been probable cause for the prosecution and directed a verdict. Thelma Banks complains here of the directing of the verdict and of the admission into evidence of regulations of Montgomery Ward, purporting to limit the authority of its local agents.

The light most favorable to plaintiff must be thrown on the evidence and the legitimate inferences from it to guide the court in determining as a matter of law, as it must in cases of this kind, whether the private prosecutor had probable cause for acting as it did. Safeway Stores, Inc., v. Barrack, 210 Md. 168, 122 A.2d 457. With this in mind, we consider the testimony for the appellant.

Thelma Banks and her husband had operated a grocery business in Salisbury called Banks' Market for some years before the giving of the check. Montgomery Ward operates a retail branch store in Salisbury and Mrs. Banks had dealt there for years. Her checks had been accepted regularly without question or difficulty. On January 24, 1955, Mrs. Banks bought a coat for her daughter at a sale. Before leaving home, she had drawn a Banks' Market check to her order and signed it, as she was authorized to do. She tendered the check in payment for the coat. The sales girl took the check to the office to have it approved, returned, and put it in the cash drawer without comment, giving Mrs. Banks the change and the coat. That Mrs. Banks inadvertently had failed to endorse the check was not noticed by her, the sales girl or her superior who approved it. In a day or two, the bank returned the check for the sole reason that it was not endorsed. When it was given, when it was presented for payment, and at all later times here material, there were on deposit in the account of Banks' Market funds sufficient for the payment of the check.

Five or six days later, Montgomery Ward advised Mrs. Banks by telephone that the check needed her endorsement. She offered to make the endorsement while shopping in the store but the check could not be found. Then, although it was still unendorsed, Montgomery Ward sent the check to the bank a second time. Again it was returned solely for lack of endorsement and Mrs. Banks was notified that the check was at the store awaiting her endorsement. On February 10, 1955, she went to Montgomery Ward for the express purpose of endorsing the check. The cashier had it but refused to let her endorse it, insisting that she sign a new check. Mrs. Banks refers to the Banks' Market check as the 'green one', and to the new check as the 'white one'. Her testimony was that the cashier gave her a white check to the printed order of Montgomery Ward and 'told me to fill this check out. I asked her to explain to me what kind of a check it was; and she said that it was merely a form to cover the green one, and that it would be sent through the same as the green one. And I said, 'It isn't a Banks' Market check. The one I gave you was on Banks' Market.' She said, 'Well, you don't have to worry about that. I know what to do. It is my job here. I know what I am doing." Mrs. Banks said she told the cashier that she had no personal account and that the name Banks' Market should be on it. The cashier's answer was: 'I didn't have to tell her what to do, that she knew her job.' On cross-examination, Mrs. Banks said the cashier 'refused to let me endorse the green check' and then said: 'the check was no good; that it had come back from the bank twice and she knew it was no good.' Mrs. Banks said she did not know the white check was not good because it was supposed to be drawn on Banks' Market. She didn't think it was worthless. She testified: 'I was going to put Banks' Market on there and she took it out of my hand and she said, 'You don't have to do my job; I know what I am doing."

Four or five days later a clerk telephoned to tell Mrs. Banks that the white check had been returned, marked 'No account'. Mrs. Banks said that either she or her husband would come up and straighten it out. Mr. Banks called Montgomery Ward and told them that he had arranged with the bank to honor the green check, which his wife had now endorsed, and that he would mail it to them in exchange for the white check. He enclosed the green check in a stamped envelope addressed to Montgomery Ward and put it on top of his desk for the mail man to pick up. Several days later, he noticed that it had not been picked up and went to the accounting department of Montgomery Ward, where he advised a lady who came up to wait on him who he was and that he was there to straighten out the check that his wife had given the company. He says that her answer was: "You have caused us one hell of a mess" and suggests that she became more abusive, so that he turned away and left. His visit would seem to have been before the warrant was issued for his wife, who was arrested at their store and taken to the jail in Salisbury. She remained there under arrest until Mr. Banks posted $28, the amount of the check and $3.00 costs, with the Judge of the People's Court. At her insistence the case was called for trial several months later. She elected to be tried by the magistrate and pleaded not guilty. The lady magistrate called the name of the assistant manager of Montgomery Ward in Salisbury, who had sworn out the warrant, found that he had been transferred to New York and was not in court, and told the manager that it was her practice to require the individual who had sworn out the warrant to testify. She advised the manager that (as would have been preferable in the first instance, in her opinion) the person who took the check, who was in court, could swear out another warrant, or he could, and have the trial, or he could accept the money that had been put up as collateral and terminate the case. The manager declined to swear out the new warrant and thereupon the magistrate dismissed the case. The docket entries show the notation: 'Traverser appeared, plead not guilty, complainant did not appear, trial had found not guilty and the case was dismissed. Restitution made.' The magistrate testified that the notation of 'Restitution made' was entered after court when she learned that Montgomery Ward had taken the money.

The manager of Montgomery Ward, called by the plaintiff, testified that he had told the magistrate at the hearing that it was not necessary that the assistant manager be there 'in view of the fact that I represented Montgomery Ward in the case and was the manager of the local store.' He also told the magistrate, he said, that in the past 'it had always been the practice for the manager or the assistant manager to swear out the warrant, rather than the sales person who accepted the check' and that it was the practice of Montgomery Ward to have either the manager or the assistant manager swear out the warrant in cases of bad checks 'whenever it is necessary'. The manager had knowledge that the warrant was to be sworn out before it was done, and directed that it be held up for several days until he found out whether Mr. Banks was going to bring in the green check.

To prevail in a suit for malicious prosecution the plaintiff must show: (1) that the criminal proceeding instituted or abetted by the defendant has terminated in his favor, apart from whether any inference as to probable cause for the proceeding arises from the termination; (2) a want of probable cause for the proceeding which may, or may not, be inferred from the termination of the proceeding, depending upon the manner of the termination; (3) malice, which is a primary purpose for the institution of the proceeding, other than that of bringing an offender to justice. Safeway Stores, Inc., v. Barrack, 210 Md. 168, 173, 122 A.2d 457, supra, and authorities cited. We think the testimony that the manager and assistant manager of the Salisbury store were authorized to bring criminal prosecutions for the giving of bad checks whenever they felt it necessary, permits the inference that their act was within the scope of their employment and therefore the act of the employer. Safeway Stores, Inc., v. Barrack, just cited; Julian Goldman Stores v. Bugg, 156 Md. 36, 38, 143 A. 589.

The criminal proceeding clearly terminated in favor of the accused so as to meet the need for this result as an element of the tort. Criminal proceedings are terminated in favor of the accused on discharge by a magistrate at a preliminary hearing, by the failure of the grand jury to indict or by an acquittal. Restatement, Torts, Sec. 659. Although in the case before us, the magistrate sat not as a committing magistrate but as a trial magistrate, a judge of the People's Court for Wicomico County, what occurred at the hearing was quite analogous to a dismissal by a committing magistrate. It is generally held that if criminal proceedings end in favor of the accused other than by acquittal, because the charge is withdrawn or the prosecution abandoned pursuant to an agreement of compromise with the accused, or out of mercy requested or accepted by the accused, there is not such a termination as will sustain a case for...