Donnally v. Fairmont Brewing Co.

• Decision Date: 25 January 1921
• Citation: 87 W.Va. 494
• Parties: Alfred H. Donnally v. Fairmont Brewing Company.
• Court: West Virginia Supreme Court

87 W.Va. 494

Alfred H. Donnally

v.Fairmont Brewing Company.

Supreme Court of Appeals of West Virginia.

Submitted January 18, 1921.

Decided January 25, 1921.

1. Malicious Prosecution Malice and, Want of Probable Cause Essential.

Before a recovery may be had in an action for malicious prosecution, both malice and want of probable cause on the part of the one instituting or instigating the proceeding must be established. The absence of either is fatal to a recovery, (p. 497).

2. Same Granting of Temporary Injunction Prima Facie Evidence of Probable Cause.

The action of the court in granting a temporary injunction upon motion of the plaintiff in the suit complained of as malicious, constitutes prima facie evidence of the existence of probable cause, for the reason that it. required the showing of a prima facie case to obtain such injunction. The presumption, however, may be rebutted by evidence showing want of such cause, (p. 498).

Error to Circuit Court, Marion County.

Action by Alfred H. Donnally against the Fairmont Brewing Company in trespass on the case for malicious prosecution or abuse of process. Judgment for defendant on a directed verdict, and plaintiff brings error.

Affirmed.

S. H. Butcher and Showalter & Frame, for plaintiff in error.

Henry 8. lively, for defendant in error.

Lynch, Judge:

Denied the right to submit for the consideration of the jury impaneled to try the cause certain evidence offered by him, Donnally, plaintiff below, seeks reversal of the judgment rendered against him upon a verdict directed by the trial court. The action is trespass on the case for malicious prosecution or abuse of judicial process.

The defendant, Fairmont Brewing Company, a corporation, upon a bill in chancery filed in the intermediate court of Jan. 1921]

Donnally v. Brewing Co. Marion County obtained an injunction to inhibit and restrain Donnally and Baltimore & Ohio Railroad Company, defendants therein, from carrying into 'effect a contract between them for the construction of a lateral switch connecting with the Belt Cine Railroad, a local line about one mile long, furnishing shipping facilities for freight to and from the place of manufacture to the main depot of the Baltimore & Ohio Railroad Company, in lieu of less convenient methods of transportation, the purpose of the proposed switch being to afford Donnally like shipping facilities for material to lie used in the manufacture of oil well supplies, among other like or similar articles of trade or commerce, and for products, manufactured by him at his machine shop located on his lot on Fifth Street in the city of Fairmont and opposite the lot owned by Fairmont Brewing Company, also served by the Belt Line then in operation.

The injunction awarded April 20. 1912, continued in force until sometime in the month of September, 1915, when it was dissolved by order of the intermediate court upon the answers and motions of the defendants, but again ipso facto reinstated, by an appeal, to the circuit court of the county, where the cause remained without further attempts on the part of plaintiff or defendants to mature or otherwise speed the cause for final hearing until dune 25, 1917, when the injunction again was dissolved, this time by the circuit court, and the bill dismissed. Tlie Brewery Company then petitioned this court for an appeal and supersedeas from the decree, and this petition was refused October 16th of the same year.

Though there are several' assignments of error, it is necessary, because of the conclusion reached upon the merits of the case, to consider only those relating to the refusal of the court to admit evidence offered by plaintiff as a witness in his own behalf upon certain items of damages for the injury, sustained by him set out in his bill of particulars. These are: (1) Moneys expended in defending tire injunction suit; (2) loss sustained in the sacrifice of machinery in his manufacturing plant and closing of the plant as the; immediate consequence of the injunction order; (3) loss of profits from, sales of coal minable on the lot, owned by him during the pendency of the order, when the prices were highest; (4) interest paid on Ilite debt, the discharge of which was prevented owing to the litigation referred to; (5) loss of storage rentals due to his being deprived of the railroad facilities contemplated by the construction of the proposed switch connection.

As plaintiff offered no proof to sustain his claims for the allowance of damages for items 1 and 4, no comment as to them is required.

The first question propounded and not permitted to be answered was: "What was the value of that machinery?", that is, lathes, planer, drill, brace, boiler, engine, various small tools, steam hammer, and forges, contained within the building owned by plaintiff and used in the business conducted by him. This is the machinery referred to in item 2 as having been "sacrificed" by plaintiff because of the injunction order, that is, sold under compulsion presumably at a price less than its true value. The second question likewise relates to item 2. After saying he was greatly damaged by the restraint due to the continued pendency of the injunction, Donnally was asked to state "in what manner you have been damaged." In neither instance was there a profert or notation upon the record of the purport of the information sought to be elicited or of the fact sought to be established, without which there is no basis for determining the materiality of the expected answer. Satire v. Woodyard, 66 W. Ya. 288; Walker v....