Eaves v. Broad River Elec. Co-op., Inc.

• Court: South Carolina Supreme Court
• Writing for the Court: GREGORY; LEWIS
• Citation: Eaves v. Broad River Elec. Co-op., Inc., 289 S.E.2d 414, 277 S.C. 475 (S.C. 1982)
• Decision Date: 11 March 1982
• Docket Number: No. 21672,21672
• Parties: Archie EAVES, Respondent, v. BROAD RIVER ELECTRIC COOPERATIVE, INC., Appellant.

Page 414

289 S.E.2d 414

277 S.C. 475

Archie EAVES, Respondent, v. BROAD RIVER ELECTRIC COOPERATIVE, INC., Appellant.

No. 21672.

Supreme Court of South Carolina.

March 11, 1982.

Rembert D. Parler, of Parler & Foster, Spartanburg, for appellant.

Nora B. Lewis, Union, for respondent.

John W. Thomas, of Dial, Jennings, Windham & Thomas, Columbia, amicus curiae for S. C. Elec. Co-op. Ass'n, Inc.

GREGORY, Justice:

This appeal is taken from the denial of appellant Broad River Electric Cooperative's motion for directed verdict and for judgment notwithstanding the verdict in respondent's action for malicious prosecution. We reverse and remand for entry of judgment in favor of appellant.

On September 15, 1978, during a routine inspection of respondent's electric meter, appellant's employee discovered that the seal was broken. While the employee was attempting to unscrew a band in order to remove the meter, the recording portion began registering. Closer examination revealed that a screw was missing. The missing screw caused a metal bar to slide into a position which allowed electric current to run into respondent's home, without recording any use of that current. The employee then inspected three meters belonging to respondent's brother, his next-door neighbor. Two of those meters were found in an altered condition. Appellant's employee reported the condition of respondent's meter to his supervisor that same day.

Appellant's assistant manager then contacted the sheriff and procured a warrant for respondent's arrest for tampering with the meter, in violation of § 16-13-385 of the 1976 South Carolina Code (Cum.Supp.1980). The warrant was served on respondent the same day. After a jury trial in magistrate's court, respondent was acquitted.

On April 5, 1979, respondent initiated a malicious prosecution action. A jury trial resulted in a verdict for respondent for $1,000.00 actual damages.

In order to maintain an action for malicious prosecution, a plaintiff must establish: (1) the institution or continuation of original judicial proceedings; (2) by or at the instance of the defendant; (3) termination of such proceedings in plaintiff's favor; (4) malice in instituting such proceedings; (5) lack of probable cause; and (6) resulting injury or damage. Parrott v. Plowden Motor Company, 246 S.C. 318, 143 S.E.2d 607 (1965).

Appellant argues respondent failed to prove two essential elements of the cause of action: (1) lack of probable cause; and (2) malice. We agree.

First, respondent failed to establish appellant's lack of probable cause to initiate judicial proceedings. Probable cause does not turn on plaintiff's guilt or innocence but upon whether the facts within the prosecutor's knowledge would lead a reasonable person to believe the plaintiff was guilty of the crime charged. Kinton v. Mobile Home Industries, Inc., 274 S.C. 179, 262 S.E.2d 727, 728 (1980).

Section 16-13-385 makes it unlawful for anyone to either tamper with or bypass a meter. It further provides:

Any meter found in a condition which would cause electricity or gas or water to be diverted from the recording apparatus of the meter or to cause such meter to inaccurately measure the use of electricity or gas or water or the attachment to a meter or distribution wire of any device, mechanism or wire which would permit the use of unmetered electricity or gas or water or would cause a meter to inaccurately measure the use thereof shall be prima facie evidence that either the person in whose name such meter was installed or the person for whose benefit electricity or gas or water was diverted caused the electricity or gas or water to be diverted from going through the meter to inaccurately measure the use of the electricity or gas or water.

This section creates a rebuttable inference or presumption of fact that either the person in whose name the meter was installed or...