Birwood Paper Co. v. Damsky

• Decision Date: 11 December 1969
• Citation: 285 Ala. 127,229 So.2d 514
• Parties: BIRWOOD PAPER COMPANY, a Corp. v. Leonard A. DAMSKY. 6. Div. 540.
• Court: Alabama Supreme Court

Page 514

229 So.2d 514

285 Ala. 127

BIRWOOD PAPER COMPANY, a Corp. v. Leonard A. DAMSKY.

6. Div. 540.

Supreme Court of Alabama.

Dec. 11, 1969.

Pritchard, McCall & Jones and Victor H. Smith, Birmingham, for appellant.

Hobart A. McWhorter, Jr. and Bradley, Arant, Rose & White, Birmingham, for appellee.

HARWOOD, Justice.

This is an appeal from a judgment awarding $4,100 in damages to the plaintiff in a malicious prosecution suit.

The evidence introduced below tends to show that the Birwood Paper Company was a business that had been conducted for many years by the Allen and Damsky families. Each family owned fifty percent of the stock in the company.

As time passed, Mr. Jacob Allen became Chairman of the Board of the company, and his son Irvin Allen became President. Leonard Damsky was Vice President and Secretary and his brother Zack was Vice President and Treasurer of the company.

Strained relations arose between the Allen and the Damsky families over the operation of the company. The Allens charged Leonard and Zack Damsky with operating a competing business. This, the Damskys denied. There have been some seven or eight suits or legal proceedings instituted by the Damskys, and it is clear from the record that for some time prior to the incident involved in this suit, the Allens had made attempts to oust the Damskys from the business.

On 24 June 1965, Leonard and Zack Damsky having pledged their stock in Birwood as security for a loan with the First National Bank of Birmingham, this stock was sold at a judicial sale by the bank. The stock was purchased by the Allens which gave them ownership of the majority of the stock in Birwood.

When Irvin Allen returned to the Birwood offices after attending the stock sale, he was informed by other employees that Leonard Damsky had been removing papers and files from his office in the company's building, which office he shared with Jacob Allen. Some four file drawers of papers and documents were removed by Leonard Damsky in this proceeding. It was Leonard Damsky's contention that the papers he removed from the offices were only personal papers and not the files of the company. On the other hand, evidence presented by the defendant below was directed toward showing that Damsky had removed documents and papers pertaining to the business of the Birwood Paper Company. It is significant that later many of these papers were returned by Damsky to the Birwood Paper Company on demand of attorneys. At this time a receipt was given for these returned papers. This receipt is in handwriting, and headed, 'Papers and catalogues pertaining to Birwood Paper Co. business returned by Leonard Damsky, July 23, 1965.' On each page is shown 'Received by Irvin Allen.' These papers largely consisted of price lists from numerous companies dealing in goods apparently handled by mercantile or manufacturing paper companies.

Upon being informed that Damsky had removed papers from the files, Irving Allen called Mr. A. W. Jones, admittedly a reputable and competent attorney of Birmingham, and informed him of the situation. During this conversation it was decided that the Allens should have the locks changed on the doors of the Birwood Paper Company, and on the safe where many of the company papers were kept. This operation was carried out by locksmiths at the behest of the Allens. It was also decided by Allen and Jones that it would be wise to have security guards posted at the Birwood Paper Company at night.

When Leonrad Damsky left his office around 5 o'clock that afternoon he noticed security guards on the premises. He testified that he told his young sons of the 'police' at the Birwood Paper Company and they were interested in seeing the policemen. That night he drove his sons to the paper company so they could see the policemen. While there he decided to go into the building. He found that his key would not open the lock and left the premises.

The next morning Damsky went to the Birwood Paper Company after first obtaining an ax from a neighbor's garage. Arriving at the Birwood premises, Damsky noticed a security guard. Again finding that his key would not unlock the door, he returned to his car, got the ax, came back to the door and smashed the glass part and thus entered the building. He identified himself to the security guard and gave the telephone numbers of Jacob Allen and Irvin Allen to the guard. In about 20 or 30 minutes, Irvin Allen arrived at the premises. A repair man was called to replace the glass. During this procedure, Damksy stated in effect that they had better replace the glass with cheap glass because he would follow the same procedure in entering the building if he found the doors locked again.

Irvin Allen testified to the effect that Damsky ha also stated that if the safe was locked against him he would blow the safe open. In this regard, Damsky testified that he had not said he would blow the safe open but had stated that he would take whatever means he felt necessary to open the safe, and 'whatever it took to get in the safe, he was going to do it.'

Irvin Allen again contacted Mr. Jones and was advised to go to the courthouse and have a peace warrant sworn out against Damsky. At the courthouse Allen appeared before J. L. Smith, Jr., for the purpose of obtaining a peace warrant and executed the following affidavit:

'Personally appeared before me, the undersigned as Ex-Officio Judge of the Jefferson County Court of Misdemeanors, of Jefferson County, in and for said County (Irvin R. Allen who being duly sworn, says that Leonard A. Damsky whose name is otherwise unknown to affiant, within twelve months before making this affidavit, in said County, did threaten or is about to commit a breach of the peace In that he threatened to destroy property of the Birwood Paper Co., Inc., a Corp. * * * against the peace and dignity of the State of Alabama. Subscribed and sworn to before me this 26 day of June, 1965.

J. L. Smith, Jr.

Ex-Officio Judge of the Jefferson County Court of Misdemeanors.

Irvin R. Allen

President, Birwood Paper Co. Inc., a Corp.'

Pursuant to the affidavit, the following Warrant for Arrest was issued:

'To Any Lawful Officer of Said County, GREETING,

You are hereby commanded to arrest Leonard A. Damsky and bring him before the Judge of the Jefferson County Court of Misdemeanors, at the present term of said court, to answer the State of Alabama of a charge of Breach of Peace * * * preferred by Irvin R. Allen.

'WITNESS MY HAND this 26 day of June 1965.

J. L. Smith, Jr.

'Ex Officio Judge of the Jefferson County Court of Misdemeanors.'

Damsky was arrested on this warrant, taken to the sheriff's office and 'booked.' He remained in jail for several hours until his attorney arranged for his release on bail.

When the proceedings against Damsky were called for trial, it appears that some attempt was made to amend the affidavit by adding the words, 'in that he threatened to destroy property of the Birwood Paper Company, a Corp.' On motion of the defendant Damsky the warrant was quashed and the defendant discharged.

The affidavit executed by Allen charged no criminal offense in that to threaten an offense on the person or property of another is not an offense against the law for which a person may be punished. At most the affidavit showed facts upon which Damsky might have been restrained from carrying out his alleged threats by proper peace proceedings. The warrant of arrest likewise was void on its fact because it charged no offense. Howard v. State, 121 Ala. 21, 25 So. 1000.

Following the quashing of the warrant and his discharge, Damsky filled the present suit seeking damages for malicious prosecution.

The complaint contained three counts claiming $25,000 damages. Count A charged that the defendants (these appellants) maliciously and without probable cause therefor caused the plaintiff (appellee here) to be arrested under a warrant on a charge of 'Breach of Peace,' which charge before the commencement of the action had been judicially investigated and said judicial action ended and the plaintiff discharged. The damages claimed as a proximate consequence of the conduct of the defendants were for embarrassment, arrest, incarceration in jail, cost of bond and attorneys fees, etc., and punitive damages were also claimed.

Count B is to the same effect as Count A except the charges to Birwood Paper Company as a corporate defendant acting through Irvin Allen.

Count C is similar to Counts A and B except that it additionally alleges that the defendants acted for the unlawful and ulterior purpose of harassing the plaintiff and detering him from exercising his lawful rights pertaining to his interest in the premises occupied by Birwood, and in the business being conducted by the corporate defendant.

In the proceedings below the complaint was treated throughout by the judge as constituting a suit for malicious prosecution. We will posit our review on the basis that the complaint did charge malicious prosecution on all counts.

In the argument portions of his brief counsel for appellant has written:

'We respectfully but earnestly submit that the appellants were entitled to the general affirmative charge as requested by them under defendants' refused Charge No. 1 Tp. 16, assignment of error No. 33.'

Counsel then proceeds to present his argument and reasons therefor as to why the defendants were entitled to the requested written affirmative charge. All of this argument relates to the sufficiency or insufficiency of various aspects of the evidence to establish certain necessary elements essential to support a recovery in a malicious prosecution action. These various arguments were permissibly presented under assignment 33.

Counsel for appellants have also referred to those assignments of error asserting error in the action of the court in refusing their requested affirmative charges, with hypotheses, requested as to each count respectively and to each defendan...