Gandy v. Palmer, 43235

• Decision Date: 14 December 1964
• Docket Number: No. 43235,43235
• Citation: 251 Miss. 398,169 So.2d 819
• Parties: Delbert GANDY and McCaffrey's Real Estate & Insurance Agency, Inc. v. Robert PALMER.
• Court: Mississippi Supreme Court

Page 819

169 So.2d 819

251 Miss. 398

Delbert GANDY and McCaffrey's Real Estate & Insurance Agency, Inc. v. Robert PALMER.

No. 43235.

Supreme Court of Mississippi.

Dec. 14, 1964.

Edward J. Currie, Hattiesburg, for appellants.

Rex K. Jones, Hattiesburg, for appellee.

BRADY, Justice.

This is an appeal from a malicious prosecution suit, filed in the Circuit Court of Forrest County, Mississippi, by appellee, Robert Palmer, against the defendants, James L. McCaffrey, Sr., Delbert Gandy, James L. McCaffrey, Sr., d/b/a McCaffrey's Homelite Chain Agency, and McCaffrey's Real Estate and Insurance Agency, Incorporated, a corporation. The plaintiff below, appellee here, sought to recover damages against said defendants below, appellants here, for the malicious issuance of a criminal affidavit charging the plaintiff with the commission of a crime under Mississippi Code Annotated section 2153 (1956), commonly known as the 'Bad Check Law.' From a judgment in favor of Robert Palmer, appellee, the appellants, McCaffrey's Real Estate and Insurance Agency, Inc., a corporation, and Delbert Gandy take this appeal. The judgment was for the sum of $10,000. Stating the prolix and disputed facts in this case as laconically as possible we find that during the month of February 1962 one H. D. Lumpkin purchased from James L. McCaffrey, Sr., d/b/a McCaffrey's Homelite Chain Saw Agency, which was owned and operated individually by James L. McCaffrey, Sr., hereinafter called James L. McCaffrey, Sr., d/b/a Agency, a saw. H. D. Lumpkin executed a note for the purchase price of the saw. On February 13, 1962, the appellant McCaffrey's Real Estate and Insurance Agency, Inc., a corporation, hereinafter called McCaffrey's, Inc., purchased from J. L. McCaffrey, Sr., d/b/a Agency, H. D. Lumpkin's note. On or about May 12, 1962, H. D. Lumpkin in turn sold his equity in the saw to appellee Palmer, who assumed payment of the balance due on the saw in the sum of $52.31. Subsequent to purchasing the saw from H. D. Lumpkin, appellee Palmer made one payment of $10, leaving a balance due and owing of $42.31 to McCaffrey's, Inc. On September 26, 1962, appellee Palmer was issued a check made by one Edwin Lennep, doing business as Edwin Lennep Lumber Company, in payment for logs which appellee Palmer had sold to Edwin Lennep. The check was in the sum of $94.58 and was drawn on the Merchants & Marine Bank of Moss Point, Mississippi. The appellee carried the check in his pocket for a period of nine days.

Mrs. Ruth Ingram was the manager and vice-president of McCaffrey's, Inc. Mrs. Ingram was in charge of real estate and loans. The record discloses that she had the authority to hire and fire persons employed by McCaffrey's, Inc., and the record also indicates that she had employed appellant Gandy as an outside collector on a mileage and percentage basis.

On October 5, 1962, appellee Palmer and his wife came to McCaffrey's, Inc., and advised the manager, Mrs. Ruth Ingram, that he wanted to pay off the saw note which he had assumed from Mr. Lumpkin. Appellee Palmer presented to Mrs. Ingram the check for $94.58, dated September 26, 1962, made by Edwin Lennep payable to the appellee. The appellee endorsed the check and the record discloses that he then requested that Mrs. Ingram ascertain whether or not the check was good. This is disputed by Mrs. Ingram who says that she did not have the cash in her office and had to go to a back office to obtain sufficient cash, while appellee says that she went to the back office in order to determine whether or not the check was good. Whether she did or did not advice appellee upon her return that the check was good, she nevertheless cashed the check and credited the appellee with $42.31, the balance due and owing on the Lumpkin note. The balance of $52.27 cash was delivered to the appellee. The record discloses that the check was then presented to the Merchants & Marine Bank of Moss Point, Mississippi, and that the check was dishonored by the bank because of insufficient funds and was returned to McCaffrey's, Inc., marked unpaid because of this fact.

Mrs. Ruth Ingram thereupon instructed Delbert Gandy to advise the appellee that the check had not been accepted and to collect the $94.58 from the appellee. The record disclosed that Delbert Gandy was not a regular employee, agent, representative or servant of the defendant, but was what was called an 'outside collector' for McCaffrey's, Inc. When making authorized collections for the appellant, McCaffrey's, Inc., Delbert Gandy was paid ten percent on such amounts as he might collect, plus a mileage allowance. Mrs. Ingram advises that on October 5, when the check was referred to Mr. Gandy for collection, this was the only check that McCaffrey's, Inc., had assigned to him at that time for collection. The record discloses that appellant Gandy made two or more trips to the home of appellee Palmer, but that he saw him only once. The testimony is in sharp conflict as to what transpired and what conversation took place between appellant Gandy and appellee Palmer. A letter was written by Mrs. Ruth Ingram to appellee Palmer informing him that the check which he had delivered to her had been returned by the bank upon which it was drawn. Delbert Gandy, on his second attempt some five or six days later, saw appellee Palmer in the town of Brooklyn. Appellant Gandy testified that he told appellee that they would have to have their money and for him to borrow the money or get the money. He told him to see Mr. Lennep and get him to make the check good; that his employer was in a bad position and that she was going to have to pay the money herself if the appellee didn't take care of it. On the other hand, the appellee asserts that the appellant Gandy told him if they had to get the law they would 'by-pass you and go direct to Mr. Lennep. He says, we've got ways of getting our money.' Appellant denies this. Appellee Palmer further testified that he saw Mr. Lennep, who told him that he would get the money for him, and to tell appellants to present the check again. Appellee Palmer testified further that he advised Mr. Lennep that the appellant Gandy had threatened to have the law on him and that Lennep laughed and said, 'Well, I'll get his money on up there to him.' The record discloses that the check was again presented and was again turned down by the Merchants & Marine Bank of Moss Point. The appellee claims that he again went to see Mr. Lennep, accompanied by Mr. Cameron and Mr. Hoyt Simmons; that he told Mr. Lennep appellants wanted their money and that he had better get it up to them, and that Mr. Lennep said, 'I'll get it up there,' and that appellee never saw Mr. Lennep subsequent to that time. Mr. Lennep, however, testified that appellee Palmer came down to see him and told him he was going to have to get the money for the check; that Mrs. Ruth Ingram would return the check to him, and that he persuaded Mr. Lennep to pay him the $94.58, which he did while they were at his millsite, and in the presence and view of two Negro employees, Joe Louis Anderson and Willie Betts, who corroborated this statement. This is denied by appellee Palmer. Mrs. Ingram, on December 15, turned the check over to appellant Gandy; this was two months and ten days subsequent to the time the check was first presented for payment on October 5, and the record discloses that appellant, Gandy, acting under instructions of manager, Mrs. Ruth Ingram, went to the office of the Justice of the Peace, R. C. Bradley, in Hattiesburg, Mississippi, and attempted to have Justice Bradley prepare an affidavit against appellee for the issuing of a worthless check. The record shows that Justice Bradley declined to do so but recommended to appellant Gandy that he go and discuss this matter with County Attorney Joe R. King. This appellant Gandy did. Appellant Gandy testified that County Attorney King told him to go to R. C. Bradley and make out an affidavit under the 'Bad Check Law' against the appellee. Mr. King, on cross-examination, said his recollection was hazy about the events, but that he had no knowledge of so advising appellant Gandy and that appellant Gandy's acts were not done on his advice. The record discloses that appellant Gandy went back and reported to Justice of the Peace Bradley that he had a conversation with County Attorney King and that Mr. King had advised him to make an affidavit against appellee Palmer under the 'Bad Check Law.' Justice Bradley prepared an affidavit under sections 2153 and 2154, utilizing the prepared form set out in Mississippi Code Annotated section 2154 (1956), commonly referred to as the 'Bad Check Law.' The record discloses that sometime later appellant Gandy called the sheriff's office, talked to Chief Deputy Childress and asked him what had been done about the affidavit which had been made out against the appellee. Childress advised that Deputy Sheriff Willie Oubre was going to serve the affidavit or warrant on appellee Palmer that afternoon. Deputy Sheriff Oubre testified that Justice Bradley 'got' the affidavit and warrant over to his office, and about two weeks later he took the affidavit and warrant and went to appellee Palmer's home. He did not recall the date. Deputy Sheriff Oubre said he talked with appellee and asked him if he would come to the jail, if it would be convenient for him to do so that night. Oubre suggested that he bring two signers for his bond to the jail and that he would meet them there; that he had two other places that he needed to go in the area, and the time for meeting was set as eight or eight-thirty. Oubre further testified that when he arrived at the jail, he found that appellee Palmer was already in the jail, with his two sureties for his bond, waiting for him in the lobby. The deputy sheriff wrote out the bond and the two sureties signed it, as did the appellee who was then released. The deputy sheriff testified that he did not take...