F.W. Woolworth Co. v. Connors

• Decision Date: 17 May 1920
• Citation: 222 S.W. 1053,142 Tenn. 678
• Parties: F. W. WOOLWORTH CO. v. CONNORS.
• Court: Tennessee Supreme Court

222 S.W. 1053

142 Tenn. 678

F. W. WOOLWORTH CO. v. CONNORS.

Supreme Court of Tennessee.

May 17, 1920

Certiorari to Court of Civil Appeals.

Action by Gustine Connors against the F. W. Woolworth Company. A judgment for plaintiff was remanded by the Court of Civil Appeals, and defendant brings certiorari. Judgment of the Court of Civil Appeals reversed, and action dismissed.

M. S Ross and Cherry & Steger, all of Nashville, for plaintiff in error.

C. H Rutherford and John W. Hilldrop, both of Nashville, for defendant in error.

McKINNEY J.

This is an action for malicious prosecution.

The defendant in error was prosecuted by the plaintiff in error in the city court of Nashville for the theft of some braid but was acquitted. This suit immediately followed.

One of the defenses interposed to this action by the plaintiff in error was that of probable cause.

A very brief outline of the facts upon which the prosecution was predicated is as follows: As Mr. Hanchett, manager or the plaintiff in error's store in Nashville, was about to leave the building one afternoon, he was called by Miss Kimbro, one of the clerks in said store, and told that the defendant in error had taken some braid from counter No. 7 without paying for same, and had started to leave the store when she apprehended her and took from under her arm a package, to which were attached two packages of braid, and she exhibited the said package, with the braid attached, to Mr. Hanchett. About the time that Mr. Hanchett came over to where Miss Kimbro and the defendant in error were standing, near the north door of said building, he heard another clerk, Miss Clardy, call to Miss Kimbro and state that the plaintiff in error had laid some of the packages of braid on the post card counter, and five packages of braid were observed lying upon said table. Mr. Hanchett, on this information, had the defendant in error arrested, and prosecuted her in the city court, as above stated.

After the defendant in error was acquitted in the city court, she was indicted in the criminal court of Davidson county for the theft of said braid, and on a trial of the case a verdict of not guilty was reported by the jury, and she was discharged. That case, however, is in no sense connected with the case we are now considering, as the indictment in that case was had subsequent to the time at which this suit was instituted.

In considering the defense of probable cause the question of the guilt or innocence of the defendant in error is not necessarily involved. She may have been entirely innocent, and still the plaintiff in error could have relied upon this defense, if properly made out.

On this point the Court of Civil Appeals very properly says: "As to the first point, the law as to reasonable or probable cause is defined to be such a state of facts in the mind of the prosecutor as would lead a person of ordinary caution and prudence to believe, or entertain an honest or strong suspicion, that the person is guilty. It does not depend on the actual state of the case in point of fact, but upon the honest and reasonable belief of the party commencing the prosecution. In order to maintain an action for malicious prosecution, it is very clear that the plaintiff must aver and prove that the suit complained of was commenced and prosecuted without reasonable or probable cause, and that it was malicious. The warrantlessness of the suit may, in many instances, be so obvious as that malice may be inferred from it. The question of probable cause applies to the nature of the suit, and the point of inquiry is whether the defendant had probable cause to maintain the particular suit upon the existing facts known to him." Newell on Malicious Prosecution, 252.

In Kelton v. Bevins, Cooke, 90, 5 Am. Dec. 670, Judge Overton said:

"The public interest is concerned that offenses should not go unpunished. It is a test of the impropriety of such prosecutions that defendants are acquitted. The true and legal principle is, Had the prosecutor ground to think that a felony had been committed, with the information he possessed at the time of the commencement of the prosecution? If he had, he ought not to be subject to damages in this action. * * *

To sustain an action for a malicious prosecution, there must not only be malice, but a want of probable cause. In the absence of either of these requisites, the action falls to the ground. Hence the want of probable cause for a prosecution is the test of this action. Though malice exists, if in the estimation of a rational and dispassionate mind there be probable cause for prosecution, the action cannot be sustained. With the information that Kelton possessed, he had reasonable ground to believe that a felony had been committed. He ought not, in justice and sound policy, to be mulct in damages and costs for endeavoring to detect and punish such offenses."

In the case of Raulston v. Jackson, 1 Sneed, 128, the court said:

"The law on this point is, and should have been so charged by the judge, that if the jury found from the proof that the defendant, at the time he instituted the prosecution, acted upon such a state of facts known to him, or derived from reliable information, as would induce a belief in the mind of a prudent, discreet man that the crime had been committed and by the person he was about to prosecute, he was not liable.

The question is not whether the defendant is really guilty, but was there good and reasonable grounds for the prosecutor to believe he was. * * *

Instead of requiring direct evidence of the fact of the crime, it may certainly often happen that no crime was in fact committed, and yet the prosecutor justifiable, because of the existence of probable or reasonable grounds to believe the criminal act had been done, and by the accused. If men were not allowed to act upon such grounds, crimes would often go unpunished for want of prosecutors. This action is only intended to apply to cases where a criminal accusation is made against an innocent man through malice, and in the absence of even a fair and reasonable probability of its truth."

In the case of Hall v. Hawkins, 5 Humph. 357, the court said:

"Probable cause is the existence of such facts and circumstances as would excite in a reasonable mind the belief that the person charged was guilty of the crime for which he was prosecuted; that is, acting upon the facts within the knowledge of the prosecutor, if a reasonable man would believe the party guilty of the crime

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