Duval Jewelry Co. v. Smith

• Decision Date: 05 August 1931
• Court: Florida Supreme Court
• Parties: DUVAL JEWELRY CO. v. SMITH.

136 So. 878

102 Fla. 717

DUVAL JEWELRY CO. v. SMITH.

Florida Supreme Court, Division B.

August 5, 1931

Rehearing Denied Sept. 14, 1931.

Error to Circuit Court, Polk County; H. C. Petteway, Judge.

Action by A. Smith against the Duval Jewelry Company. To review a judgment for the plaintiff on the first count in the declaration, the defendant brings error.

Reversed.

Syllabus by the Court.

SYLLABUS

An action for malicious prosecution lies in all cases where there is a concurrence of the following elements: (1) The commencement or continuance of an original civil or criminal judicial proceeding; (2) its legal causation by the present defendant against plaintiff who was defendant in the original proceeding; (3) its bona fide termination in favor of the present plaintiff; (4) the absence of probable cause for such proceeding; (5) the presence of malice therein; (6) damage conforming to legal standards resulting to plaintiff.

All these elements must be established by a preponderance of the evidence, and the burden of proving them, including the concurrence of malice and want of probable cause, is on the plaintiff. Malice may be implied or inferred from want of probable cause, but want of probable cause cannot be inferred from malice.

Section 5202, Revised General Statutes of 1920 prohibiting the removal to another county of goods sold under conditional sale contract without the seller's written consent, is to protect the seller by restricting the situs, rather than the reasonable use of the property.

The rule seems to be general that acting on the advice of counsel is a complete defense to an action for malicious prosecution either of civil or criminal actions, where it appears that the prosecution was instituted in reliance in good faith on such advice, given after a full and fair statement to the attorney of all the facts, and the fact that the attorney's advice was unsound or erroneous will not affect the result.

The advice of counsel cannot be sought or secured as a shield from a feigned action for malicious prosecution or as a cloak to hide malice, but it must be sought in good faith, with the sole purpose of being advised as to the law.

COUNSEL

Oakley & Cade, H. E. Oxford, and Zorah B. Close, all of Lakeland, for plaintiff in error.

Ira C. Hopper, of Lakeland, for defendant in error.

OPINION

TERRELL J.

The declaration in this cause was cast in two counts. The first count was predicated on malicious prosecution, and the second count on the abuse of legal process. There was a trial on each count separately, the second count being tried first. At the conclusion of the testimony, motion for an instructed verdict was granted, and plaintiff took nonsuit. The trial on the first count was continued before the same jury, resulting in a verdict and judgment in the sum of $4,316.40 for the plaintiff. Motion for new trial was denied, and writ of error was taken to that judgment.

Many errors were assigned, but we deem it necessary to consider only the third assignment, which is bottomed on the refusal of the trial court to grant an instructed verdict for the defendant.

For the treatment of the third assignment of error, these facts as disclosed by the record are material: April 1, 1927, A Smith, the plaintiff below, purchased of Duval Jewelry Company at Lakeland, Fla., the defendant below, one ladies' white gold diamond ring, said purchase being made under a retained title contract on the installment plan installments payable monthly, on the first day of the month in the sum of $20 each, and to be made continually until the full purchase price was paid. At the time of this purchase, A. Smith gave his address as Lakeland, Fla., and his business as that of government employee.

The retained title contract, some time called conditional sale contract, involved here is regulated by section 5202, Revised General Statutes of 1920, as amended by chapter 9288, Acts of 1923, Laws of Florida (same being section 7316, Compiled General Laws of 1927). For the purpose of this case, said act prohibits the sale, pledge, mortgage, or otherwise disposing of personal property held under conditional sale contract, or the removal of such property from the county where said contract was entered into without the written consent of the person, firm, or corporation holding such contract. Failure or refusal to produce for inspection, and property held under such contract within the county where the lien was created upon the demand of the person holding said contract after the debt secured thereby has become enforceable or the vendee has defaulted in the performance thereof, is made prima facie evidence of concealing, selling, or disposing of the same.

The first installment on Smith's conditional sale contract was due May 1, 1927. It was not paid at maturity, and on inquiry plaintiff in error found that he had left Lakeland without leaving his forwarding address or any other information as to his destination or where he would be located and could be reached. He was located in Jacksonville Fla., three weeks later, and was arrested on a warrant sworn out by plaintiff in error charging him with pledging, mortgaging, selling, or disposing of the ring he had recently purchased from plaintiff in error under retain title contract contrary to section 5202, Revised General Statutes of 1920, as above, he having advised appellant that he did not have the ring and refused to give any information as to where it was. He was returned to Lakeland, and, on being arraigned for trial, produced the ring in court. The ring having been produced, plaintiff in error promptly...