Galizian v. Henry

• Citation: 76 S.E. 440,71 W.Va. 292
• Parties: GALIZIAN v. HENRY.
• Decision Date: 12 November 1912
• Court: West Virginia Supreme Court

76 S.E. 440

71 W.Va. 292

GALIZIAN v. HENRY.

Supreme Court of Appeals of West Virginia.

November 12, 1912

Submitted February 6, 1912.

Syllabus by the Court.

In a count in a declaration for malicious prosecution, finality of the prosecution is sufficiently charged by an allegation of release of the plaintiff and cessation of the prosecution of the complaint, and desertion and abandonment thereof, and termination of the same.

In a count for false imprisonment, it suffices, as to venue, to say the trespass occurred in a certain building in a certain town in the county, specifically naming the places.

Counts for malicious prosecution and false imprisonment may be joined in a declaration in trespass on the case.

A verdict founded upon conflicting oral evidence will not be disturbed, in the absence of controlling facts, admitted or established.

Error to Circuit Court, McDowell County.

Action by Tudor Galizian against William Henry. Judgment for plaintiff, and defendant brings error. Affirmed.

Anderson Strother & Hughes, of Welch, for plaintiff in error.

Strother Taylor & Flanagan and M. S. Taylor, all of Welch, for defendant in error.

POFFENBARGER J.

Galizian recovered a judgment against Henry for $500 for malicious prosecution and false imprisonment.

Failure of the first count of the declaration to allege completion and termination of the prosecution is the ground of the demurrer thereto; but, as it says the defendant had released the plaintiff, and not further prosecuted his complaint, and had deserted and abandoned it and prosecution of the same had ended, we think finality is substantially averred. To hold otherwise would be extremely technical.

As ground of demurrer to the second count, failure to allege the venue is charged, but it says the trespass was committed at the defendant's saloon, situate, and being in the county of McDowell, in the town of Keystone, in said county. Though informal, this, in our opinion, suffices.

Nor is there a misjoinder of counts rendering the declaration bad as a whole. By statute trespass on the case lies in any case proper for trespass vi et armis at common law, and these two causes of action grow out of the same transaction, involving substantially the same evidence. Hence joinder thereof is clearly allowable. Beckwith v. Mollohan, 2 W. Va. 477; Lively v. Ballard, 2 W. Va. 496; Parsons v Harper, 16 Grat. (Va.) 64; Page v. Banking Co., 111 Ga. 73, 36 S.E. 418, 51 L. R. A. 463, 78 Am. St. Rep 145.

Plaintiff's instruction No. 1, submitting the question of liability upon the hypothesis of an arrest without a warrant, at the instance of the defendant, and in the absence of justification, agreeable to the theory of the second count of the declaration, supported by evidence, was properly given. It was inapplicable to the case stated in the first count, averring an arrest under a warrant, without probable cause, but the other count claimed liability for false imprisonment, a case made out by an arrest without a warrant, or under a void warrant, without justification. An action lies against a private person by whose direction or procurement such an arrest is made by a public officer. Gillingham v. O. R. R. Co., 35 W.Va. 588, 14 S.E. 243, 14 L. R. A. 798, 29 Am. St. Rep. 827; McKain v. B. & O. R. Co., 65 W.Va. 233, 64 S.E. 18, 23 L. R. A. (N. S.) 289; Moore v. Chapman, 3 Hen. & M. (Va.) 260; 19 Cyc. 329-331, 332. Claiming a debt from the plaintiff, the defendant directed and procured his arrest, without a warrant, it is said, to prevent him from leaving the state to avoid payment. The proceeding had for its purpose only collection of a debt, not punishment for a criminal offense. Hence we think the evidence justified the giving of the instruction.

Defendant's instruction No. 1, binding the jury to find for the defendant, if, in their opinion, he honestly believed the plaintiff owed him a debt and had reasonable ground for belief that the latter, being a resident of the state, was about to depart and reside outside thereof without having paid the debt, and saying the swearing out of a warrant for his arrest was justified by such facts, if found, was properly refused, because it wholly ignored the theory of liability for the arrest without a warrant. Its purpose was to obtain a verdict on justification of the acts complained...