Franks v. Theodore Heck & Co.

• Decision Date: 12 February 1918
• Citation: 179 Ky. 276,200 S.W. 469
• Parties: FRANKS v. THEODORE HECK & CO.
• Court: Kentucky Court of Appeals

200 S.W. 469

179 Ky. 276

FRANKS v. THEODORE HECK & CO.

Court of Appeals of Kentucky.

February 12, 1918

Appeal from Circuit Court, Kenton County, Criminal, Common Law, and Equity Division.

Suit by Roberts Franks against Theodore Heck & Co. Directed verdict for defendants, and plaintiff appeals. Affirmed.

B. F Graziani, of Covington, for appellant.

Wm. A Byrne, of Covington, for appellees.

CARROLL J.

The appellant, Franks, brought this suit against Heck & Co. to recover damages for malicious prosecutions, averring that they procured his arrest upon the charge of wrongfully and fraudulently converting property of another to his own use, and that upon his trial under this charge he was acquitted. Heck & Co. in their answer admitted that they procured the arrest of Franks, but averred that they did so upon information showing probable cause for his arrest, and under the belief in good faith that he was guilty of the charge under which he was arrested. The case went to trial before a jury, and when all the evidence offered by both parties was in, the trial judge ordered a verdict for Heck & Co., and of this ruling Franks complains.

On this appeal the only question about which we need concern ourselves is, Did Heck & Co. at the time, and before they procured the arrest of Franks, have such information as would induce a person of ordinary prudence to in good faith believe that Franks had committed the offense for which he was arrested? If they did--and the evidence introduced on the trial showed without contradiction that the information upon which they acted was sufficient to establish probable cause that he was guilty of the offense for which they had him arrested--the ruling of the trial court was correct, although Franks may have, in fact, been innocent of the offense charged.

We may also here say that there is no claim that Heck & Co. were prompted by malicious motives in securing his arrest, and the whole case turns, as we have said, on whether they did or did not have sufficient information to in good faith believe he was guilty.

Heck &amp Co. were furniture dealers in Cincinnati, Ohio, and in connection with their retail store for the selling of goods they had a warehouse on another street in which goods are stored. Some time before the arrest of Franks they had information leading them to believe that goods were being stolen from their warehouse, at or from which place it was not usual or customary to sell goods, as sales were made at their other store. A short while after this information was secured, they employed a detective by the name of Saul to keep an eye on things going on at the warehouse, and to report to them what he discovered. Saul, after reporting from time to time that goods were being taken from the warehouse by certain persons whom he named, through connivance with a man named Barth in the employ of Heck & Co., and who had charge of their warehouse, on one occasion early in the morning discovered a man leaving the warehouse, carrying on his shoulder a load of rugs, and, following this man, he found that he went with the load of rugs to the Cincinnati end of the suspension bridge which crosses the Ohio river into Covington, Ky. and, after waiting there a while, he put the rugs in a wagon, in which they were taken to Covington and placed in a secondhand store there. He also discovered that a little while afterwards the rugs were taken from the first secondhand store to the store of another secondhand dealer named Dahlenberg, in Covington. Saul immediately notified Heck & Co. by telephone, advising them what he had discovered, and thereupon Heck & Co., together with a Cincinnati detective, went to their...