Boothby Realty Co. v. Haygood, 6 Div. 402

Citation269 Ala. 549,114 So.2d 555
Decision Date17 September 1959
Docket Number6 Div. 402
CourtSupreme Court of Alabama
PartiesBOOTHBY REALTY CO. v. Carrie M. HAYGOOD.

Wm. M. Acker, Jr., Smyer, White, Reid & Acker, Birmingham, for appellant.

J. Robt. Huie and J. Terry Huffstutler, Birmingham, for appellee.

McGowen & McGowen and Manly & Manly, Birmingham, amici curiae, on behalf of appellant.

MERRILL, Justice.

Appellee, Carrie M. Haygood, brought suit against the Boothby Realty Company a Corporation, appellant, for maliciously and without probable cause therefor causing appellee to be prosecuted in a civil suit in the Municipal Court of Birmingham upon a charge of nonpayment of rent under a lease agreement. A judgment for appellee was set aside on motion for a new trial. The case was tried again and appellee was awarded damages in the amount of $4,500. The trial court ordered a remittitur reducing the judgment to $2,000, which remittitur was filed by appellee.

The tendencies of the evidence are that Mrs. Haygood had been a tenant of Boothby Realty Company for some time prior to September 26, 1955, when she consulted her attorney, Mr. J. Robert Huie, and requested him to learn from Boothby Realty Company under what terms and conditions she could vacate the said apartment before the expiration of her current lease. Mr. Huie had a telephone conversation with Mr. James H. Roberts, Vice-President of Boothby Realty Company, while Mrs. Haygood was in his office and there resulted from the conversation a letter written by Mr. J. Robert Huie in behalf of Mrs. Haygood authorizing Boothby to sublease the apartment occupied by Mrs. Haygood. Under date of December 23, 1955, Boothby Realty Company wrote Mrs. Haygood advising that they would be glad to quote her apartment for February 15th occupancy with the provision that she would be responsible for the apartment until a new lease was signed, plus three per cent of the unexpired lease or a minimum of $5, whichever was greater.

Subsequently, Mrs. Haygood received another letter from Boothby Realty Company advising that her apartment had been re-rented as of March 22, 1956. The letter requested that she remit rent through March 21st, plus three per cent. of the unexpired lease, amounting to $49.08. Mrs. Haygood sent her check to Boothby Realty Company in the amount of $49.08 on March 12, 1956. The check was accepted and cashed by Boothby Realty Company. Mrs. Haygood moved on March 21, 1956.

Boothby Realty Company rented Mrs. Haygood's apartment to Mrs. Bernice R. Webb, who signed a lease identical to the lease which had been in effect with Mrs. Haygood. Mrs. Webb paid the sum of $18.58, as rent on the apartment, to Boothby Realty Company at the time she signed the lease.

Mrs. Webb told Mr. Roberts that she would expect the apartment to have been redecorated and the floors sanded when she began occupancy on March 22nd and she received assurance that these requirements would be met. Based upon this assurance, she executed the lease and made the deposit. When March 22nd arrived, the redecoration had not commenced and the apartment was not ready. Mrs. Webb made other arrangements and requested that her money be returned, which appellant did. The apartment was re-rented to a third party on April 15, 1956. Mr. Roberts presented the entire file and the facts and circumstances surrounding the transaction to appellant's attorney, who advised the appellant that it had a cause of action against Mrs. Haygood for the unpaid rent under her lease up to April 15th.

Suit was filed in the Municipal Court of Birmingham and at the trial, the parties were present and testified and judgment was rendered for appellant. On appeal to the circuit court, the jury found in favor of the appellee.

The principle conflict in the evidence is exactly what took place in a telephone conversation between Mr. Roberts and Mrs. Haygood. Mr. Roberts testified that he called Mrs. Haygood over the telephone while Mrs. Webb was present in his office and explained that the redecorating and floor sanding would have to be completed by March 22nd, and that Mrs. Haygood agreed to vacate the apartment on March 15th. Mrs. Haygood admitted a telephone conversation but denied that she was asked to vacate before the 21st and denied also that she promised to vacate earlier. Mrs. Webb said that she saw Mr. Roberts make a telephone call but did not hear the conversation, but after the call, he assured her that the apartment would be ready for occupancy on March 22nd. On Friday, March 16th, appellant sent a crew to begin the redecoration and they were denied entrance because Mrs. Haygood had not vacated. On the following Monday, Mr. Roberts went with the crew to the apartment again and they were denied entrance by the maid. They did not get access to the apartment until March 22nd.

Appellant contends that it was entitled to the affirmative charge because the evidence showed that it had recovered a judgment against the plaintiff here on the first trial and this fact was conclusive as to the presence of probable cause, even though plaintiff secured a judgment on appeal, there being no evidence in the instant case of fraud, perjury or other improper means.

This question does not appear to have been decided by this court insofar as civil cases are concerned, except in an attachment suit to which reference will be made later. This court does not follow the majority rule in cases of malicious prosecution arising out of criminal cases. The rule, according to the weight of authority, is that the judgment of conviction, if not obtained by improper means, is conclusive evidence of probable cause for instituting the prosecution even though the conviction is reversed. 34 Am. Jur., Malicious Prosecution, § 55; 54 C.J.S. Malicious Prosecution § 37b; Vol. II Modern American Law, Torts, Malicious Prosecution, § 5, p. 297. The 'settled rule for Alabama' is 'that the judgment of conviction, though later vacated and accused discharged, is prima facie evidence of the existence of probable cause for instituting the prosecution 'which may be rebutted by any competent evidence which clearly overcomes the presumption arising from the fact of defendant's conviction in the first instance.'' Republic Steel Corp. v. Whitfield, 260 Ala. 333, 70 So.2d 424, 426; Kemp v. York, 16 Ala.App. 675, 81 So. 195, certiorari denied, 202 Ala. 425, 80 So. 809.

The majority rule in malicious prosecution cases arising out of civil cases is that unless a judgment or decree in prior civil proceedings against the malicious prosecution plaintiff was obtained by fraud, perjury or other improper means, the judgment or decree establishes or shows conclusively the existence of probable cause for bringing the former action even though it was subsequently reversed or set aside. 58 A.L.R.2d 1430, § 5; 34 Am.Jur., Malicious Prosecution, § 57; 54 C.J.S. Malicious Prosecution, § 24b.

Many differences between malicious prosecution suits arising from criminal cases and those arising from civil cases are pointed out in Restatement of the Law of Torts, Vol. 3, §§ 674, 675. Some of these differences are:

1. A prosecution for a criminal offense is not justified unless the prosecutor believes and has probable cause for believing that the person against whom the proceedings are brought is guilty of the crime charged against him. Belief, even if reasonable, in the possible guilt of the accused is not enough to give the private prosecutor cause to initiate criminal proceedings. On the other hand, a reasonable belief in the possibility that the claim may be held valid is sufficient to give probable cause for the initiation of civil proceedings.

2. The only proper purpose for initiating criminal proceedings is to aid in the administration of the criminal law by bringing one who is believed to be a criminal to justice, while civil proceedings may properly be brought to secure the adjudication of a claim which the person initiating them believes may possibly be adjudicated in his favor.

3. Where the action is for the initiation of criminal proceedings, the private prosecutor may escape liability by proving that the accused was guilty of the crime charged against him, even though the proceedings had resulted in his acquittal. Where, however, the proceedings are civil, the decision of a competent tribunal is a final adjudication of all matters in dispute. Therefore, the person who unsuccessfully initiates civil proceedings can not relitigate the validity of his claim in an action brought for their wrongful initiation.

4. In order to recover, the plaintiff must prove something more than the mere fact that the civil proceedings have been initiated without probable cause and for an improper purpose and have terminated in his favor. He must show either material harm or the violation of a legal right which is in itself sufficient to support an action for damages.

5. In one particular a private prosecutor's reasonable belief in the guilt of the accused differs from the reasonable belief of one who initiates private civil proceedings against another. A private prosecutor does not have reasonable grounds for believing that the accused has conducted himself in a particular manner, if he merely entertains a suspicion even though he reasonably believes it may be verified upon further investigation. On the other hand, where the proceedings are civil, it is enough that the person initiating them believes that he can establish the existence of such facts to the satisfaction of the court and jury. In a word, the initiator of...

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