Dickerson v. Atlantic Refining Co.

Citation159 S.E. 446,201 N.C. 90
Decision Date15 June 1931
Docket Number406.
CourtUnited States State Supreme Court of North Carolina

Appeal from Superior Court, Guilford County; Sink, Special Judge.

Action by J. M. Dickerson against the Atlantic Refining Company and others. Judgment for defendants, and plaintiff appeals.

New trial.

Master is liable for acts of his servant resulting in injury to third persons whether malicious or negligent when done within line of duty and in exercise of functions of employment.

Master whose servant negligently does actionable wrong to another while doing what he is employed or directed to do, is liable not only for what servant does, but for ways or means employed.

Civil action for malicious prosecution.

It appears from the record that on Saturday morning, February 8 1930, the plaintiff, who is president and general manager of the King Cotton Garage, Inc., ordered from the Atlantic Refining Company, Inc., 100 gallons of gasoline to be delivered during the day. The order was given to and received by E. R. Swaim, manager in charge of the Greensboro office of the Atlantic Refining Company, Inc., and delivery was made about 5 p. m. that afternoon by F. G. Brady, truck driver and deliveryman for the said refining company.

In payment of the gasoline, the plaintiff handed to Brady a check for $18.20, made payable to "The Atlantic Refining Co.," and signed "King Cotton Garage, Inc., By J. M. Dickerson, Pres." Brady hesitated to accept the check, but, on being assured by the plaintiff that it was all right, he decided to take it. Plaintiff testified: "I was not prepared at that time to give him the cash, but I said 'I will be very willing to have my men and myself get the gas and return it to you if you don't want to receive the check." D'

Within a couple of hours thereafter Brady returned with the check, and said he would have to have cash for the gasoline. "He then got very sore about it." Plaintiff told him the check was all right and would be paid upon presentation, that he had on hand only enough money to cover his pay roll, but that, if he would bring the check back later in the evening, he thought he would have sufficient cash by 11 o'clock that night to take it up.

Plaintiff was arrested about 8 p. m. that evening on a warrant sworn out by F. G. Brady charging him with uttering a worthless check--the check above mentioned--in violation of chapter 62, Public Laws 1927. The plaintiff was held in custody several hours until he gave a cash bond for his appearance before the justice of the peace on Tuesday thereafter, February 11, at 3 o'clock p. m.

On the following Monday morning plaintiff went to the bank at 9 o'clock sharp and made a further deposit of $30 as a certain protection to the check which he had given to Brady for the Atlantic Refining Company, Inc., the previous Saturday afternoon. He had money in the bank at the time--amount not stated-- to the credit of King Cotton Garage, Inc. When the plaintiff arrived at the bank, he found Mr. Swaim there and overheard a request on his part that the bank put "an insufficient funds tag" on the check. This the tellor declined to do. Two days later, February 12, the check was presented to the bank for payment by E. R. Swaim, and was paid upon presentation.

At 11 o'clock on the morning of February 10, E. R. Swaim saw the plaintiff and said to him: "We made a mistake--we want you to come up with me and have this warrant withdrawn." This the plaintiff declined to do. The constable came to plaintiff's place of business at 6 o'clock the same day, and offered the plaintiff his cash bond back, which he declined to accept. Plaintiff appeared at the magistrate's office at the time set for the hearing, 3 o'clock p. m., February 11, and found that "the case had been nol. pros'd. with leave." This was without his procurement or consent.

There was evidence that the plaintiff's reputation and character had been injured by the prosecution in question.

At the close of plaintiff's evidence, the trial court, being of opinion that the plaintiff had failed to make out a case against any of the defendants, directed a verdict in their favor and entered judgment accordingly. Plaintiff appeals, assigning errors.

Benbow, Hall & Wilson, of Winston-Salem, for appellant.

Frank P. Hobgood, of Greensboro, for appellees.


To make out a case of malicious prosecution, the plaintiff is required to allege and to prove that the defendant instituted or participated in a proceeding against him maliciously, without probable cause, which ended in failure. Wingate v. Causey, 196 N.C. 71, 144 S.E. 530; Bowen v. Pollard, 173 N.C. 129, 91 S.E. 711; Carpenter Co. v. Hanes, 167 N.C. 551, 83 S.E. 577; Humphries v. Edwards, 164 N.C. 154, 80 S.E. 165; Stanford v. Grocery Co., 143 N.C. 419, 55 S.E. 815; Pittsburg, J. E. & E. R. R. Co. v. Hardware Co., 138 N.C. 174, 50 S.E. 571, 3 Ann. Cas. 720; Id., 143 N.C. 54, 55 S.E. 422; Ely v. Davis, 111 N.C. 24, 15 S.E. 878; Jerome v. Shaw, 172 N.C. 862, 90 S.E. 764, L. R. A. 1917B, 749; 18 R. C. L. 11.

A nolle prosequi with leave is sufficient termination of a criminal prosecution to support an action for malicious prosecution based thereon. Winkler v. Lenoir & Blowing Rock Lines, 195 N.C. 673, 143 S.E. 213; Wilkinson v. Wilkinson, 159 N.C. 265, 74 S.E. 740, 39 L. R. A. (N. S.) 1215; Marcus v. Bernstein, 117 N.C. 31, 23 S.E. 38; Hatch v. Cohen, 84 N.C. 602, 37 Am. Rep. 630.

It was held in Welch v. Cheek, 115 N.C. 310, 20 S.E. 460; Id., 125 N.C. 353, 34 S.E. 531, that a dismissal of a warrant by a justice of the peace at the instance of the prosecutor, without the consent or procurement of the defendant therein, was a sufficient determination of the proceeding to support an action of malicious prosecution based thereon. See, also, Murray v. Lackey, 6 N. C. 368.

Want of probable cause, since it involves a negative, may be inferred from such facts and circumstances as will reasonably permit the inference, especially in case of nonsuit or directed verdict. Tyler v. Mahoney, 166 N.C. 509, 82 S.E. 870; Moore v. Bank, 140 N.C. 293, 52 S.E. 944. As against a demurrer to the evidence, it is sufficient to show that the proceeding, upon which the action for malicious prosecution is based, was instituted or pursued causelessly. Humphries v. Edwards, supra.

Probable cause for a criminal prosecution does not depend upon the guilt or innocence of the accused, nor upon the fact as to whether a crime has actually been committed. When one acts upon appearances in preferring a criminal charge, and the apparent facts are such as to lead a discreet and prudent person to believe that a crime has been committed by the party charged, although it turns out that he was mistaken, and the party accused was innocent, still he is justified. 18 R. C. L. 36. It is a case of apparent, rather than actual, guilt.

Justifiable cause, in a case of this kind, is a well-founded belief on the part of the prosecutor in the existence of facts essential to the prosecution, supposing him to be a person of ordinary caution, prudence, and judgment. Cabiness v. Martin, 14 N.C. 454. Probable cause for a criminal prosecution, in the sense in which the term is used in actions for malicious prosecution, was defined by Mr. Justice Washington in the case of Munns v. Dupont De Nemours, Fed. Cas. No. 9926, 3 Wash. C. C. 37, as "a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief, that the person accused is guilty of the offence with which he is charged." This was approved by the Supreme Court of the United States in the case of Stacey v. Emery, 97 U.S. 642, 645, 24 L.Ed. 1035, where the following definition of Shaw, C.J., taken from Ulmer v. Leland, 1 Me. (1 Greenl.) 135, 10 Am. Dec. 48, was also quoted with approval: "Such a state of facts as would lead a man of ordinary caution to believe, or to entertain an honest and strong suspicion, that the person is guilty."

Speaking to the subject in Smith v. Deaver, 49 N.C. 513, Battle, J., delivering the opinion of the court, says: "As a guide to the court, it is defined to be 'the existence of circumstances and facts sufficiently strong to excite, in a reasonable mind, suspicion that the person charged with having been guilty, was guilty. It is a case of apparent guilt as contradistinguished from real guilt. It is not essential, that there should be positive evidence at the time the action is commenced, but the guilt should be so apparent at the time, as would be sufficient ground to induce a rational and prudent man, who duly regards the rights of others, as well as his own, to institute a prosecution; not that he knows the facts necessary to ensure a conviction, but that there are known to him sufficient grounds to suspect that the person he charges was guilty of the offence." D'

"Probable cause, in cases of this kind, has been properly defined as the existence of such facts and circumstances, known to him at the time, as would induce a reasonable man to commence a prosecution." Hoke, J., in Morgan v. Stewart, 144 N.C. 424, 57 S.E. 149, 151.

Evidence that the chief aim of the prosecution was to accomplish some collateral purpose, or to forward some private interest, i e., to obtain possession of property, or to enforce collection of a debt, and the like, is admissible both to show the absence of probable cause and to create an inference of malice, and such evidence is sufficient to establish a prima facie want of probable cause. MacDonald v. Schroeder, 214 Pa. 411, 63 A. 1024, 6 L. R. A. (N. S.) 701, 6 Ann. Cas. 506; Wenger v. Phillips, 195 Pa. 214, 45 A. 927, 78 Am. St. Rep. 810; Ross v. Hixon, 46 Kan. 550, 26 P. 955, 12 L. R. A. 760,...

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