Glass v. Parrish

• Decision Date: 06 April 1951
• Citation: 51 So.2d 717
• Parties: GLASS et al. v. PARRISH.
• Court: Florida Supreme Court

Page 717

51 So.2d 717

GLASS et al. v. PARRISH.

Supreme Court of Florida, en Banc.

April 6, 1951.

R. F. Maguire, R. H. Wilkins and Maguire, Voorhis & Wells, all of Orlando, for appellants.

Alex Akerman, Jr., Orlando, for appellee.

HOBSON, Justice.

This appeal is from a final judgment entered in an action for malicious prosecution which judgment was predicated upon a jury's verdict. Appellee was plaintiff below and Appellants were defendants.

Appellee employed Appellants to install custom-made seat covers on her new Packard convertible automobile. The seat covers were installed and the charge made therefor was $199.50. Appellee paid the bill with a check to which she signed her mother's name. Appellants deposited the check and subsequently it was returned by the bank upon which it was drawn. The official slip had the notation 'signature' and there was written in pencil upon the check the following words: 'Signature not as authorized.' Appellants consulted their attorney with the result that a charge of forgery was filed against Appellee. Appellants or one of them initiated the criminal action. The Justice of the Peace issued his warrant of arrest and Appellee was arrested and incarcerated in the jail at Tavares.

After the preliminary hearing before the Justice of the Peace the Appellee was discharged. The Magistrate found from the evidence that 'there is not sufficient cause to believe the defendant, Patricia Martin, is probably guilty of the offense with which she was heretofore charged in a warrant issued out of this Court.'

Shortly after the preliminary hearing Appellee instituted the present suit in and by which she sought and obtained a judgment for $2300.50. The verdict was in the amount of $2500.00 for the Appellee and $199.50 against the Appellee and in favor of the Appellants. Thus, the final judgment, as previously stated, was in the sum of $2300.50.

We have held that in an action grounded upon malicious prosecution the plaintiff has the burden of proving: (1) the instigation of the criminal proceeding by the defendant; (2) its termination in favor of the plaintiff; (3) the exercise of malice by the defendant; (4) want of probable cause for the prosecution; and (5) damage. Duval Jewelry Co. v. Smith, 102 Fla. 717, 136 So. 878; Ward v. Allen, 152 Fla. 82, 11 So.2d 193.

Appellants entertain the view that the Appellee failed to prove by a preponderance of the evidence: (1) the exercise of malice by the defendant and (2) want of probable cause for the prosecution. Such conclusion can be reached only upon the premise that there was no competent substantial evidence before the jury which, if believed by it, established malice and want of probable cause. After a careful study of the transcript of testimony we have reached the conclusion that there was evidence of want of probable cause, and if independent proof of malice was not clear and positive it matters not, for the jury had the right under our prior adjudications to infer malice after proof of want of probable cause. Appellants also contend that they established by uncontroverted testimony their defense of advice of counsel.

The plaintiff (Appellee here) testified that the defendants (Appellants here) knew her name was Patricia Martin and that she told them she had been authorized by her mother to sign her name to checks on the mother's back account, which she further testified she had done as a course of conduct over a period of years. Mr. Crumly confessed that he knew the Appellee both as Miss Pat Martin and Miss Patricia Martin but he and Mr. Glass denied that she advised them she was authorized to sign her mother's name to the check. Mr. Crumly, with whom the check transaction took place, attempted to explain the fact that he saw her make out the check in the name of Irene Martin by asserting that 'I just assumed that Pat might be her nickname.' The jury had a right to refuse to accept this weak excuse, for the witness knew the Appellee's name was Patricia or Pat Martin. Although it would not have been unreasonable to presume that Pat was a nickname for Patricia, the jurors would have been credulous indeed (and this was a matter solely for the jury to conclude) had they followed the testimony to the effect that the witness assumed that Pat was a nickname for Irene. These conflicts in the testimony were resolved by the jury against Appellants and in favor of Appellee.

The foregoing testimony, coupled with other evidence hereinafter detailed, when considered in the light of the evidentiary fact that the criminal prosecution was dismissed by the magistrate after the State had presented its case at the preliminary hearing and in view of the appropriate inference that the criminal prosecution had as its purpose and objective the collection, by coercion, of a civil debt, was ample predicate for the jury's conclusion that want of probable cause had been established, that appellant had not acted in good faith and that malice motivated the accusation and consequent prosecution.

Furthermore, in considering the question of good faith on the part of appellants we are drawn to a study of a letter (Defendant's Exhibit 3) written to the appellee's mother (Mrs. Irene R. Martin) by the attorney for appellants which letter bears date of December 31, 1947 and to an examination of the check, which was returned by the bank on December 1, 1947 together with the bank slip attached to said check. On the back of the check is a penciled notation 'Signature not as authorized' and the official bank slip gives one word only as the reason for the return of the check, to-wit: 'Signature.' In considering the letter written by Appellants' attorney to Mrs. Irene R. Martin the fact that the check, together with its accompanying official bank slip, was in the hands of said attorney at the time he wrote the letter and had been returned by the bank thirty days prior thereto, is significant and worthy of studied analysis. The letter reads:

'Mrs. Irene R. Martin,

506 Center St.,

Eustis, Florida

'Dear Mrs. Martin:

'I have had referred to me by the Orlando Seat Cover and Supply Company, 100 West Washington St., Orlando, Florida, a certain check in the amount of $199.50, dated November 17, 1947, No. 165, drawn on the First National Bank, Eustis, Florida, and signed 'Irene R. Martin'. This check was put through the usual channels and payment was refused. From the information I have received, your daughter had certain labor and materials furnished in and about a 1948 Packard convertible for seat covers, etc.

'I have written your daughter, Miss Patricia Martin, about this check, since I am informed she issued it, but I am not positive whether or not you had signed the check yourself or whether your daughter signed your name as the maker.

'You may have given your daughter authorization to sign your name, but if you did not, the situation poses a rather serious situation. I am somewhat reluctant to take this matter into court, but I am sure you will agree with me that the Orlando Seat & Supply Company cannot afford to lose such a sizable amount, especially since this was a rush job.

'Payment must be made on this check on or before January 10, 1948, or else I will have no other recourse than to advise my client to turn this matter over to the County.

'Very truly yours,

'J. Walter Hall' (Italics supplied).

This letter shows clearly that the attorney entertained doubt with reference to the matter of the lack of authority of the appellee to sign her mother's name to the check even after he had been employed by the appellants who through counsel in this case contend that a full disclosure of all material facts was made to their attorney when they employed him and sought his advice. The jury functioned definitely within its province and in line with well-reasoned judicial pronouncements when it concluded that the appellants, although they had grounds for suspicion, did not themselves believe that appellee had been guilty of forgery; and the jury likewise acted within the bounds of reason when it refused to be lead to the conclusion that there was no agreement, understanding or funds with the bank to meet or pay said check. Good faith is always an essential element to be considered on the question of probable cause. We quote with approval from the case of Franzen v. Shenk, 192 Cal. 572, 221 P. 932, 934, wherein the Supreme Court of California said: 'The rule in this behalf is stated in Fleischhauer v. Fabens, supra [8 Cal.App. 30, 96 P. 17], where it is held, in effect, that the good faith of the defendant is an essential element in the defense of probable cause; and that even though a defendant shows reasonable grounds of suspicion, sufficiently strong in themselves as to warrant a cautious man in the belief that there was probable cause for the prosecution, nevertheless, if it be apparent that he did not himself believe in the guilt of the accused, then the circumstances upon which he relied will not suffice to shield and vindicate him.' The California Supreme Court also approved and quoted from Broad v. Ham, 132 English Reprints 1278, the following language: 'It would be a monstrous proposition that a party who did not believe the guilt of the accused, should be said to have a reasonable and probable cause for making the charge.'

There is another theory upon which it is argued that the final judgment in this case should be reversed and that is the defense of advice of counsel. However, for this Court to hold a reversal in order it would...