Gallucci v. Milavic

Decision Date12 February 1958
Citation68 A.L.R.2d 1164,100 So.2d 375
PartiesAL GALLUCCI, Appellant, v. Jacob MILAVIC, Appellee.
CourtFlorida Supreme Court

Von Arx, Von Arx & Hope, Miami, for appellant.

Charles F. Zokvic, Miami, for appellee.

THOMAS, Justice.

At the close of the appellant's testimony, in the trial of his action to recover from the appellee damages for malicious prosecution, the judge directed the jury to return a verdict in appellee's favor. From the subsequent judgment this appeal was taken.

The parties had been partners in the sale of used cars and had owned, as partners, several vehicles including a Hudson sedan and a Dodge 'four door' as well as other property including an extension cord, battery cable and wrenches. They became involved in a dispute and the appellee ordered the appellant to leave the premises. Evidently he obeyed and when he did he took with him the cord, cable, wrenches and four automobiles.

The appellee then signed affidavits charging the appellant with theft of the Hudson and Dodge cars and the other property we have described.

At a preliminary hearing before a justice of the peace, at which the appellant remained silent, he was held for trial on two charges of grand larceny and one of petit larceny. The county solicitor filed no informations for the greater offenses but the appellant was tried for the lesser one in the Court of Crimes of Dade County. At the conclusion of the state's case, the judge granted appellant's motion for a directed verdict of not guilty.

All the elements of an action for malicious prosecution were detailed in Warriner v. Burdines, Inc., Fla., 93 So.2d 108. Of course, we are immediately concerned with but two of these, probable cause and malice.

In the present action the appellant charged the appellee with having instigated the prosecutions without probable cause and with reckless disregard of appellant's rights under circumstances demonstrating oppression and wantonness, all of which, so it was alleged, caused the appellant financial loss, bodily distress and humiliation.

The appellant testified at the trial of this action for damages that it was customary for the partners, and for appellee's sons, to use, on personal missions, cars in the possession of the partnership and he argues that these circumstances indicate there was want of probable cause that his taking of the cars constituted larceny. And he insists that there was no facts indicating that he acted clandestinely or that he intended to convert the partnership property to his own use, although there was some evidence that the obtained the cars when appellee was absent.

The property other than the motorcars was said by appellant to have been kept in his own trailer which by agreement of the parties was used as their office. When the partners became estranged the appellant drove away his trailer in which this other property was located. There was testimony that one of these articles belonged to the appellant, and the others to the partnership.

Evidently appellant was taking a short cut to a partial dissolution of the partnership in order to be sure some of the assets would be available to him, and apparently his action was prompted by the ill feeling engendered by the dispute that had arisen.

Under the law, Sec. 37.03, Florida Statutes 1955, F.S.A., a justice of the peace may issue process for persons charged with crime and make the same returnable before himself for examination. In the instant controversy this procedure was followed and when the matter came before the justice of the peace for examination, he found probable cause that the offenses had been committed and held that the appellant should answer. Sec. 902.14, Florida Statutes 1955, and F.S.A. Had he concluded no probable cause appeared he would have discharged appellant. Sec. 902.13, Florida Statutes 1955, and F.S.A. We repeat the significant circumstance that during this procedure the appellant said nothing. So when the cases had been processed by an officer empowered to deal with them and left his office on the way to the prosecutor, the county solicitor, they carried the verity that there was probable cause that the appellant had committed the crimes of which he was accused.

Justification for instituting the criminal proceedings against appellant existed if appellee entertained a reasonable ground of suspicion, 'supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief' that appellant was guilty of the larceny of the cars and other property, to paraphrase the language quoted from Dunnavant v. State, Fla., 46 So.2d 871, in Goldstein v. Sabella, Fla., 88 So.2d 910. A person need not be sure of the result of an eventual trial to have probable cause to start a prosecution. The court held in Lewton v. Hower, 35 Fla. 58, 16 So. 616, that binding over was determination of the existence of probable cause, although in the subsequent trial the defendant was acquitted.

It was determined in Golstein v. Sabella, supra, that conviction in the criminal trial was conclusive evidence of the existence of probable cause at the outset, unless, of course, 'the judgment was obtained by...

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45 cases
  • Ware v. U.S.
    • United States
    • U.S. District Court — Middle District of Florida
    • 21 Julio 1997
    ...of and challenge the preliminary evidence against him. Burns v. GCC Beverages, Inc., 502 So.2d 1217, 1219 (Fla.1986); Gallucci v. Milavic, 100 So.2d 375, 377 (Fla.1958) (recognizing the presumption of probable cause derived from a ruling of a justice of the peace that plaintiff should answe......
  • Arquette v. State
    • United States
    • Hawaii Supreme Court
    • 14 Diciembre 2012 this footnote, the court's finding of a lack of malice followed from its finding of probable cause. See, e.g., Gallucci v. Milavic, 100 So.2d 375, 378 (Fla.1958) ("Although malice may be inferred from want of probable cause, the converse is not true.") Accordingly, on appeal, Petitioner ......
  • Colonial Stores, Inc. v. Scarbrough
    • United States
    • Florida Supreme Court
    • 8 Diciembre 1977
    ...from the state attorney's decision to prosecute respondent Scarbrough, petitioners relied upon this Court's decision in Gallucci v. Milavic, 100 So.2d 375 (Fla.1958). In Gallucci, we held that in a malicious prosecution suit a presumption arises from a magistrate's finding of probable cause......
  • Cazares v. Church of Scientology of California, Inc.
    • United States
    • Florida District Court of Appeals
    • 15 Diciembre 1983
    ...FRANK D. UPCHURCH, Jr. and SHARP, JJ., concur. 1 City of Pensacola v. Owens, 369 So.2d 328 (Fla.1979) (directed verdict); Gallucci v. Milavic, 100 So.2d 375 (Fla.1958) (directed verdict); Johnson v. City of Pompano Beach, 406 So.2d 1257 (Fla. 4th DCA 1981) (summary judgment); Fee, Parker & ......
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