George v. Leonard, Civ. A. 1445.

• Court: United States District Courts. 4th Circuit. United States District Court of South Carolina
• Writing for the Court: TIMMERMAN
• Citation: 84 F. Supp. 205
• Parties: GEORGE v. LEONARD et al.
• Docket Number: Civ. A. 1445.
• Decision Date: 17 May 1949

84 F. Supp. 205

GEORGE
v.
LEONARD et al.

Civ. A. 1445.

United States District Court E. D. South Carolina, Columbia Division.

May 17, 1949.

84 F. Supp. 206

Wise, Whaley & McCutchen, Columbia, S. C., R. K. Wise, Columbia, S. C., Thomas B. Whaley, Columbia, S. C., Thomas E. McCutchen, Columbia, S. C., for plaintiff.

Robinson & Robinson, Columbia, S. C., D. W. Robinson, Columbia, S. C., James F. Dreher, Columbia, S. C., C. T. Graydon, Columbia, S. C., John K. de Loach, Camden, S. C., for defendants.

TIMMERMAN, District Judge.

This action is one for malicious prosecution. It was combined for trial with a companion case between the same parties, No. 1444, which was an action for malicious abuse of a criminal process. They were combined for trial by consent although they rest upon different factual bases and are controlled by different legal principles. They were combined for trial because (1) the parties were the same in each case, (2) the principal witnesses were to testify in each of the cases, (3) the time of the Court and of litigants would be conserved, and (4) the overall expenses of trial would be reduced.

These cases have been tried together three times. Upon the first trial (Judge Wyche presiding) defendant's motion to dismiss the complaint in each case was granted at the close of plaintiff's evidence. In due time Judge Wyche granted new trials for errors of law. George v. Leonard, D.C., 71 F.Supp. 662, George v. Leonard, 71 F.Supp. 665, D.C. The second trial resulted in a directed verdict for the defendants in the malicious abuse of process case, after all the evidence was in; and a mistrial was ordered in the malicious prosecution case, the jury having failed to agree. On appeal the action of the District Court in directing a verdict for the defendants in the abuse of process case was reversed. George v. Leonard, 4 Cir., 169 F.2d 177.

The Court is now concerned with the results of the third trial of these cases. On this trial, following Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487, the Court tried the cases under its conception of South Carolina

84 F. Supp. 207

law. In the malicious abuse of process case the jury returned a verdict in favor of the plaintiff for $415 actual damages, and in the malicious prosecution case it returned a verdict for the plaintiff for $15,000 punitive damages

The present concern of the Court is the motion of the defendants in the malicious prosecution case "to set aside the verdict for punitive damages and to enter judgment for the defendants in accordance with their motion for a directed verdict." Summarized, the grounds of this motion are as follows: (1) Plaintiff's failure to prove lack of probable cause; (2) plaintiff's failure to prove express malice; (3) plaintiff's failure to prove that the criminal prosecution terminated in his favor; (4) the jury's determination that the plaintiff failed to establish facts warranting actual damages precludes recovery of punitive damages; and (5) judgment for plaintiff in the malicious abuse of process action is a bar to recovery in the malicious prosecution action.

Upon the last trial of these cases the Court was confronted with an apparent contradiction in the opinion in George v. Leonard, 4 Cir., 169 F.2d 177, and also experienced difficulty in reconciling that opinion with its understanding of applicable South Carolina law, which under the Erie decision it was required to follow.

In George v. Leonard, D.C., 71 F.Supp. 662, 663, it was distinctly held: "An action for abuse of process, as distinguished from an action for malicious prosecution and from an action for false imprisonment, constitutes an independent cause of action. The distinctive nature of an action for abuse of process, as compared with actions for malicious prosecution and for false imprisonment, is that it lies for the improper use of a regularly issued process, not for maliciously causing process to issue, or for an unlawful detention of the person." (Italics added.)

The opinion of Judge Wyche was approved in George v. Leonard, 4 Cir., 169 F.2d 177. While the cited District Court opinion does not elaborate all of the distinctive elements of the two alleged causes of action, it does point to the fundamental distinctions between the two types of action. From them it necessarily follows that proof of the essential elements of one of the stated causes of action would not of itself warrant a verdict for the plaintiff in the other. Each would have to rest upon its own bottom.

What has given serious concern is not the fact that the Appellate Court approved the cited District Court opinion but the further fact (which apparently is in conflict with the first) that the Appellate Court said "that so far as this case is concerned, the actions for abuse of process and malicious prosecution are alleged to arise from the same facts and to have resulted in the same sort of damage. They are not separate and independent causes of action, but relate to the same subject matter and should be tried together." (Italics added.)

That statement seems to contradict the previous approval of the opinion of Judge Wyche in 71 F.Supp. 663, in that it is succinctly stated in the District Court opinion that "An action for abuse of process, as distinguished from an action for malicious prosecution * * *, constitutes an independent cause of action", while in the Appellate Court opinion it is said 169 F.2d 178 "They are not separate and independent causes of action." They either are or they are not independent causes of action. They cannot be both. As further stated in the District Court opinion, South Carolina is a common law state and "all the states that recognize an action for malicious prosecution and an action for false imprisonment which South Carolina does, also permit an action for abuse of criminal process, except Georgia."

Under South Carolina law the distinction between causes of action for malicious prosecution and malicious abuse of process is as marked as is the distinction between causes of action for malicious prosecution and false imprisonment. The Court in Whaley v. Lawton, 57 S.C. 198, 35 S.E. 741, 743, in pointing to the distinction between actions for false imprisonment and malicious prosecution, said, "the former proceeds upon the theory that the plaintiff has been arrested without authority of law and illegally deprived of his liberty, while the latter proceeds upon the theory that

84 F. Supp. 208

the plaintiff has been lawfully arrested under a warrant charging a criminal offense, but that such prosecution is malicious and without probable cause. See McConnell v. Kennedy, 29 S.C. at pages 186, 187, 7 S.E. 76." Applying the foregoing principle to the present situation, it follows that the distinction between an action for malicious abuse of process and one for malicious prosecution lies in the fact that the former proceeds upon the theory that the plaintiff has been the victim of an unauthorized and abusive use of a criminal or civil process, "while the latter proceeds upon the theory that the plaintiff has been lawfully arrested under a warrant charging a criminal offense, but that such prosecution is malicious and without probable cause."

The conflict between South Carolina law and the cited Appellate Court decision, 169 F.2d 177, has been noted solely to show the difficulties under which the last trial was conducted, and also the difficulties attending the disposition of the pending motion.

Upon the issue of the existence of probable cause, the first ground of defendants' motion, there was conflict of testimony. The Court is not...