Boxer v. Slack.
| Decision Date | 17 March 1942 |
| Docket Number | (No. 9236) |
| Citation | 124 W.Va. 149 |
| Court | West Virginia Supreme Court |
| Parties | Joseph Boxer v. John Mark Slack et al. |
Malicious Prosecution
Where a declaration in an action for malicious prosecution charged conspiracy between defendants and a justice of the peace to convict plaintiff and also that a conviction was obtained on fraudulent and untrue evidence, and the evidence offered by plaintiff tended to support the latter allegation, proof of conspiracy was not essential to the establishment of a prima facie case, the allegation of conspiracy being treated as surplusage.
Error to Circuit Court, Kanawha County. Action of trespass on the case by Joseph Boxer against John Mark Slack, former Sheriff of Kanawha County, and his deputies, Adam Burford, Frank Skaggs, and Nobel Jenkins, to recover damages arising from alleged malicious prosecution. To review a judgment on a directed verdict in favor of defendants, the plaintiff brings error.
Judgment reversed; verdict set aside; new trial awarded.
G. S. Millhouse, for plaintiff in error.
Kay, Casto & Amos, for defendants in error.
Joseph Boxer instituted this action of trespass on the case in the Circuit Court of Kanawha County to recover from John Mark Slack, former Sheriff of Kanawha County, and his deputies, Adam Burford, Frank Skaggs and Nobel Jenkins, damages arising from an alleged malicious prosecution. At the conclusion of plaintiff's evidence, the trial court sustained defendant's motion to strike plaintiff's evidence and direct a verdict in their favor, and entered judgment on such verdict, and to that action of the court below, this writ of error is prosecuted.
Plaintiff testified that he was taken into custody by Burford, Skaggs and Jenkins on the evening of August 12, 1939, and placed in the Kanawha County jail, charged with being intoxicated. He challenged the charge before incarceration and requested, but was denied, the use of a telephone. On the following morning, he was released after giving bond before Chase P. Loury, a Justice of the Peace of Kanawha County, who, on August 14th, issued a warrant upon complaint of Skaggs, which charged that Boxer "did unlawfully appear in a public place in an intoxicated condition" on August 12, 1939. After a continuance, Boxer was tried before Loury on August 22nd, and found guilty on the testimony of Skaggs, Burford, Jenkins and another witness, a trusty at the Kanawha County jail. At the trial before Loury, Boxer and four other witness testified in refutation of the charge. Upon appeal to the Intermediate Court of Kanawha County, Boxer was found not guilty and the charge was dismissed. The at- torney who appeared before Loury in Boxer's behalf testified that prior to the trial, Loury asked him if Boxer would agree not to prosecute or bring any kind of an action against the deputies "if the matter was dismissed", but that Boxer refused this offer. There is also the testimony of Joe Wilam to the effect that after Boxer had been found guilty by Loury, in answer to Wilam's assertion that Loury knew that Boxer was not guilty, Loury stated: "Joe, I just have to back these fellows up; they are the only fellows from the sheriff's office who give me any business."
The declaration herein includes the allegation of a conspiracy between the deputies and the justice "to convict the plaintiff of the alleged offense charged and thereby gain an indemnification against a suit for malicious prosecution". As stated in the record, the action of the trial court was based upon the theory that the conspiracy between the deputies and the justice of the peace was the basic element in plaintiff's case as alleged in the amended declaration and that the proof offered failed to show such conspiracy. With the conclusion that plaintiff failed to show by competent evidence that such a conspiracy existed, we find agreement; however, we believe that the amended declaration sets forth a basis for recovery in this action and that evidence tending to support the same is included in this record.
Generally in an action for malicious prosecution, plaintiff must allege and prove malice and want of...
To continue reading
Request your trial
-
Wisniski v. Ong
...Stebbins v. Wilson, 122 Mont. 186, 199 P.2d 453; Calbeck v. Town of South Pasadena, Florida, (Fla.App.) 128 So.2d 138; Boxer v. Slack, 124 W.Va. 149, 19 S.E.2d 606; Lynn v. Smith (D.C.Pa.) 193 F.Supp. 887; Engleman v. Progressive Machinery Corporation (D.C.Mass.) 156 F. Supp. The facts of t......
-
Zablonsky v. Perkins, 127
...Fawcett, 226 Mass. 100, 115 N.E. 280, 100 L.R.A.1917D, 408; Moore v. Winfield, 207 N.C. 767, 178 S.E. 605, 97 A.L.R. 1019; Boxer v. Slack, 124 W.Va. 149, 19 S.E.2d 606. The appellant argues that there was no evidence of fraud, perjury or corrupt means, and that the only error was that of th......
-
Deaton v. Leath
...through fraud, perjury, or other undue means. Falkner v. Almon, 22 N.C.App. 643, 207 S.E.2d 388 (N.C.1974); Boxer v. Slack, et al., 124 W.Va. 149, 19 S.E.2d 606 (W.Va.1942); Ricketts v. J.G. McCrory Co., 138 Va. 548, 121 S.E. 916 (Va.1924); Georgia Loan & Trust Company v. Johnston, 116 Ga. ......
-
Walker v. Tyler County Com'n
...testimony in order to secure his conviction, he has established a prima facie case for malicious prosecution. Boxer v. Slack, 124 W.Va. 149, 19 S.E.2d 606, 607-08 (1942). Applying the foregoing principles to the facts involved here, there can be no doubt that the Walkers have adequately sta......