Brooks v. Super Service, Inc.

• Decision Date: 12 December 1938
• Docket Number: 33317
• Citation: 183 So. 484,183 Miss. 833,185 So. 202
• Court: Mississippi Supreme Court
• Parties: BROOKS v. SUPER SERVICE, INC., et al

183 So. 484

185 So. 202, 183 Miss. 833

BROOKS v. SUPER SERVICE, INC., et al

No. 33317

Supreme Court of Mississippi

December 12, 1938

(Division A.)

MALICIOUS PROSECUTION.

The disposal of a prosecution by entry of an order reciting that "a cessat processus" was thereby entered in the case followed by release of the defendant from custody and the dismissal of the charges against him constituted a termination in his favor on which an action for malicious prosecution could be based, the order being for practical purposes equivalent to a formal "nolle prosequi."

ON SUGGESTION OP ERROR.

(Division A.) December 12, 1938.

1. MALICIOUS PROSECUTION. A judgment of conviction has the same evidential value on question of probable cause for instituting prosecution, regardless of whether it was reversed or not.

2. MALICIOUS PROSECUTION. A judgment of conviction is not conclusive evidence of existence of probable cause for instituting the prosecution.

3. MALICIOUS PROSECUTION. In malicious prosecution action by plaintiff who had been convicted in justice court declaration alleging that plaintiff had been charged with unlawful retention of rental storage battery, that defendants at time of institution of prosecution knew that plaintiff had never assumed any obligation for return of any rental battery and that he had never received any battery from them nor authorized any one to receive such battery, did not disclose probable cause for instituting prosecution, since, if allegations were true, conviction had been obtained by evidence known to be false.

Division A

October 3, 1938

APPEAL from the circuit court of Hinds county HON. J. P. ALEXANDER Judge.

Action by Frank Brooks against Super Service, Inc., and others, for malicious prosecution. Judgment sustaining a demurrer to the declaration, and dismissing plaintiff's cause of action and plaintiff appeals. Reversed and remanded.

On suggestion of error. Suggestion of error overruled.

Reversed and remanded. Suggestion of error overruled.

Lotterhos & Travis and Vardaman S. Dunn, all of Jackson, for appellant.

The order of cesset processus is a sufficient termination of the criminal prosecution forming the basis of this action within the requirement of the malicious prosecution rule.

Bouvier's Law Dictionary.

We respectfully submit that the very least that can be said of the cesset processus is that it amounts to an indefinite postponement, which is, in effect, a discharge without day and a clear cut abandonment of the prosecution.

It appears that the modern rule is a technical hangover from the early cases requiring a jury acquittal as a condition precedent to the action for malicious prosecution. The principal reasons advanced in these very early cases were as follows:

(1) "That, until the prosecution is determined by the court having jurisdiction thereof, it cannot be known that such court will not sustain it, and in so doing hold, not only that there was probable, but there was sufficient, cause, and, as such ruling would relate back to the institution of the prosecution or proceeding, it would necessarily follow that during the interval there could have been, in contemplation of law, no injury, and hence no cause or right of action."

Carnes v. Atkins Bros. (La. 1909), 48 So. 572.

(2) "That before a party criminally prosecuted shall have a right maintain an action and recover damages, against one who has acted as complainant in behalf of the commonwealth and ostensibly for the public good, he shall begin by offering a verdict in his favor, by a jury who have considered the cause on its merits."

Parker v. Farley, 10 Cush. (Mass.) 279.

The courts soon discarded the rule of acquittal as a condition precedent to the action, and among the earliest cases repudiating the doctrine it was held that a simple nol pros was sufficient to ground an action of malicious prosecution.

Brown v. Randall, 36 Conn. 56, 4 Am. Rep. 35.

It is now generally recognized that a simple nol pros is a sufficient termination.

38 C. J. 444, sec. 96; Odom v. Tally, 160 Miss. 797, 134 So. 163.

The true inquiry, in passing on the question of termination of criminal prosecution, which forms the basis of the present action, is whether the criminal prosecution has been abandoned, and the manner of bandonment, we submit, is wholly immaterial.

This court has in at least four recent cases denounced the practice of using the criminal statutes and setting in motion the machinery of the criminal courts for the purpose of enforcing an alleged civil obligation.

Odom v. Tally, 160 Miss. 797, 134 So. 163; Grenada Coca Cola Co. v. Davis, 168 Miss. 826, 151 So. 743; O'Bryant v. Coleman, 169 Miss. 776, 152, So. 59, 154 So. 259.

The authorities established the proposition that an abandonment of the criminal prosecution is a sufficient termination to ground an action for malicious prosecution.

Burdicks' Law of Torts, pages 310 and 311; Leever v. Hamell, 57 Ind. 423; Lowe v. Wartman, 47 N.J.L. 413, 1 A. 489; Brown v. Rankall, 36 Conn. 56, 4 Am. Rep. 35; Fay v. O'Neill, 36 N.Y. 11; Streylow v. Pettit, 71 N.W. 102; Riet v. Meyer, 146 N.Y.S. 75; Waldron v. Sperry, 44 S.E. 283; Wilkerson v. Wilkerson, 74 S.E. 740, 39 L.R.A. (N.S.) 1215; Dickerson v. Atlantic Refining Co., 159 S.E. 446; Abernethy v. Burns, 188 S.E. 97; Winkler v. Lenoir, 143 S.E. 213.

In addition to the effect of the order cesset processus, there is in the case at bar the additional element of abandonment, in that no attempt has been made by appellees or any one else since the entry of the order cesset processus and the discharge of appellant thereunder to again prosecute appellant on the criminal charges.

W. M. Snyder, of Jackson, for appellees.

The amended declaration upon which appellant's action is based alleges no facts upon which any legal cause of action is predicated against the appellee.

Richardson v. Curlee, 158 So. 189, 229 Ala. 505; Topolewski v. Plankinton Packing Co., 143 Wis. 52, 126 N.W. 554, 97 A.L.R. 1022.

There is no evidence in the record other than in the amended declaration of the appellant of the fact that the appellant was brought to trial before justice of the peace and found guilty, and appellees submit that there was nothing in the proceedings prior to and at trial of the appellant as appears in the record, to indicate that the appellant was "fraudulently and maliciously convicted without due process of law."

Cotton v. Harlan, 124 Miss. 691, 87 So. 152; Simpson v. Phillips, 164 Miss. 256, 141 So. 897; Cooley's Constitutional Limitations, 406; Ames v. Williams, 72 Miss. 760, 17 So. 762; Gillespie v. Haverstein, 72 Miss. 838, 17 So. 602; Allen v. Dicken, 63 Miss. 91; Kelly v. Harrison, 69 Miss. 856, 12 So. 261; Blucher v. Zonker, 19 Ind.App. 615, 49 N.E. 911; Gurley v. State, 101 Miss. 190, 57 So. 565; Hune v. Inglis, 154 Miss. 481, 122; So. 535; Langley v. State, 170 Miss. 520, 155 So. 682; Dinaway v. State, 157 Miss. 615, 128 So. 770; Miss. Power Co. v. Russell, 152 So. 847, 169 Miss. 36; Ross v. Louisville & N. R. Co., 178 Miss. 69, 172 So. 752; State v. Junkin, 159 So. 107; National Surety Co. v. Julian, 227 Ala. 472, 150 So. 474; Flewellen v. Crane, 58 Ala. 627; Pickett v. Pipkin, 64 Ala. 520; Quarles v. Campbell, 72 Ala. 64; Meadows v. Meadows, 73 Ala. 356; Phoenix Ins. Co. v. Moog, 78 Ala. 284, 56 Am. Rep. 31.

A stay of proceedings is not an order of dismissal such as claimed by appellant as being in his favor.

Bolton v. State, 166 Miss. 290, 146 So. 453; Brown v. Randall, 36 Conn. 5, 4 Am. Rep. 35; 38 C. J. 414, sec. 49 (2), and 444, sec. 96.

In the case at bar, we beg to submit that all issues of fact as contained in the record were tried or could have been tried in the justice of the peace court, which found the appellant guilty, and such conviction has not been reversed.

Burdicks' Law of Torts, pages 313 and 314, sec. 267.

The holding of an accused person by a committing magistrate, as well as the finding of an indictment by a grand jury, is generally accounted evidence of probable cause; and his discharge upon a preliminary examination, is treated by some courts as evidence of a want of probable cause. Abandonment of the prosecution would seem also to raise a prima facie case of lack of probable cause.

Leever v. Hamell, 57 Ind. 423; Lowe v. Wartman, 47 N.J.L. 413, 1 A. 489; Fay v. O'Neill, 36 N.Y. 11; Strehlow v. Pettit, 71 N.W. 102; Riet v. Meyer, 146 N.Y.S. 75; Waldron v. Sperry, 44 S.E. 283; Wilkerson v. Wilkerson, 74 S.E. 740, 39 L.R.A. (N.S.) 1215; Hatch v. Cohen, 84 N.C. 602, 37 Am. Rep. 630; Marcus v. Bernstein, 117 N.C. 31, 23 S.E. 38.

We submit, if the court please, that the authorities cited in appellant's brief have no, bearing whatsoever on the case at bar for the reason that the defendants in the criminal proceedings cited by appellant were never brought to trial, while in the case at bar we emphasize the appellant herein was tried and convicted in a court of record and general jurisdiction with all the facts, as shown in declaration before the court at time of trial.

The universal rule being that where the conviction stands unreversed, the attempt to maintain an action for malicious prosecution because of the prosecution of the proceeding resulting in the conviction is an attempt to impeach the judgment of conviction by showing that it was obtained through fraud or perjury; and with but few exceptions, it is held that this cannot be done in a collateral proceeding. Hence the judgment of conviction is conclusive in favor of the defendant that there was probable cause for the prosecution; therefore it constitutes a defense to the action.

Counsel for appellee has made an exhaustive search of authorities and has failed to find any case where a...