Colonial Stores, Inc. v. Scarbrough, Y--160

Decision Date28 October 1976
Docket NumberNo. Y--160,Y--160
Citation338 So.2d 1119
PartiesCOLONIAL STORES, INC., a Foreign Corporation, doing business as Big Star Food Stores and Clyde D. Carter, Appellants, v. Doyle Wayne SCARBROUGH, Appellee.
CourtFlorida District Court of Appeals

George L. Hudspeth and James A. Bledsoe, Jr., of Mahoney, Madlow, Chambers & Adams, Jacksonville, for appellants.

Stephen H. Davis and Richard G. Rumrell, of Smathers & Thompson, Jacksonville, for appellee.

SMITH, Judge.

We have thoroughly considered the entire record, the briefs and the oral argument on this appeal from a money judgment entered on a general verdict for plaintiff in an action for malicious prosecution and false imprisonment.

Appellants' only argument attacking the sufficiency of evidence on the malicious prosecution count is that the trial court failed to give proper effect, when ruling on appellants' motions for directed verdict, to the presumption of probable cause which is said to have arisen from the State Attorney's decision to prosecute. Gallucci v. Milavic, 100 So.2d 375 (Fla.1958), held that such a presumption arises from a Magistrate's finding of probable cause and that it is conclusive, absent fraud or other corrupt means employed by the person initiating the prosecution. For the reasons stated in Rodgers v. W. T. Grant Co., 326 So.2d 57, 65 (Fla.App.1st, 1976), cert. pending, we decline to accord the Gallucci presumption to a prosecutor's decision. We do not construe Meade v. Super Test Sales, Inc., 306 So.2d 211 (Fla.App.2d 1975), as supporting appellants' position. Rather, that decision found that 'there was reasonable cause presented' for the State Attorney's decision to prosecute. 306 So.2d at 212. Similarly, Ward v. Allen, 152 Fla. 82, 11 So.2d 193 (1943), held that the filing of an information is evidence tending to show grounds for prosecution, but it did not give such evidence presumptive effect.

Here, the trial court charged the jury that filing of an information against appellee gave rise to a presumption of probable cause. The charge was favorable to appellants in this respect, and we agree with appellee that the instruction was in error.

In accordance with Rule 1.110(g), R.C.P., appellee pleaded alternatively or cumulatively both false imprisonment and malicious prosecution. The jury was separately charged concerning these distinct torts and it returned a general verdict. Our duty, of course, is to uphold the verdict...

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3 cases
  • Saudi Arabian Airlines Corp. v. Dunn
    • United States
    • Florida District Court of Appeals
    • September 14, 1983
    ...consider appellant's argument that there was insufficient evidence to support a verdict based on "agency." Colonial Stores, Inc. v. Scarborough, 338 So.2d 1119 (Fla. 1st DCA 1976), aff'd. 355 So.2d 1181 (Fla.1977).8 In deciding Dinkins, the court distinguished the decision of Makoske v. Lom......
  • Colonial Stores, Inc. v. Scarbrough
    • United States
    • Florida Supreme Court
    • December 8, 1977
    ...cause is before us on petition for writ of certiorari to review the decision of the District Court of Appeal, First District, reported at 338 So.2d 1119, which is alleged to be in conflict with McKinney v. Dade County, 341 So.2d 1061 (Fla. 3d DCA 1977), on the issue of whether the filing of......
  • Johnson v. Lasher Milling Co., Inc.
    • United States
    • Florida District Court of Appeals
    • February 21, 1980
    ...and malicious prosecution. The jury returned a general verdict for the plaintiff. The District Court held (Colonial Stores, Inc. v. Scarbrough, 338 So.2d 1119 (Fla.1st DCA 1976), affirmed by the Florida Supreme Court, Colonial Stores, Inc. v. Scarbrough, supra), that the general verdict cou......

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