Glidewell v. Murray-lacy & Co

• Decision Date: 13 March 1919
• Citation: 98 S.E. 665
• Court: Virginia Supreme Court
• Parties: GLIDEWELL . v. MURRAY-LACY & CO. et al.

98 S.E. 665

GLIDEWELL .

v.MURRAY-LACY & CO. et al.

Supreme Court of Appeals of Virginia.

March 13, 1919.

[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Abuse of Process.]

Error to Circuit Court, Lunenburg County.

Notice of motion by J. Y. Glidewell against Murray-Lacy & Co. and others. To review judgment for respondents, movant brings error. Affirmed.

Geo. E. Allen, of Victoria, for plaintiff in error.

Booker, McKinney & Settle, of South Boston, for defendants in error.

KELLY, J. Section 1 of an act of the General Assembly, approved March 11, 1912 (Acts 1912, p. 232), declares:

"That it shall be unlawful for any person to borrow money from any person, firm or corporation conducting a business as sales tobacco warehousemen upon a written promise or pledge to sell with or through said person, firm or corporation, any tobacco, and thereafter fail or refuse to comply with the conditions of said written promise or pledge."

And section 2 thereof provides that any person who shall fail to comply with such written pledge, or to repay the amount borrowed, with legal interest, shall be guilty of a misdemeanor, and punished by fine, or imprisonment, or both.

A warrant, issued by a justice in Halifax county, at the instance of Murray-Lacy & Co., tobacco warehousemen, charging J. Y. Glidewell with having obtained from and failed to repay to them the sum of $93 under circumstances constituting a violation of this statute, was placed in the hands of J. T. Bass, a constable of the county, who was also an employe of Murray-Lacy & Co., and as such charged with the duty of collecting outstanding obligations due to them. He took the warrant to the home of Glidewell, who resided in Lunenburg county some six or seven miles from the town of Victoria, and, not finding him at home, proceeded to Victoria and delivered the warrant to the town sergeant with instructions to execute the same, having first, however, had it duly indorsed by a Lunenburg justice as provided by section 3957 of the Code. The arrest was effected by the sergeant about 3 o'clock in the afternoon of that day. Bass was notified and returned at once to Victoria. Upon his return, he asked Glidewell "what he expected to do." After some conversation not detailed in the record, it was tentatively agreed between them that If Glidewell would execute a new note, with security, covering the $93 mentioned in the warrant, the correctness of which as a civil liability he did not deny, he would be at once released and the warrant dismissed. He was not willing, however, to definitely conclude any adjustment of the matter without consultingcounsel, and accordingly the parties repaired to the law office of his attorney, Mr. Geo. E. Allen. Upon being asked by Mr. Allen, "What do you want?" Mr. Bass replied, "We want money." The subject of compromise was then taken up, and, upon an offer made by Glidewell (but against the advice of his attorney, who stated that Bass had no right to make the arrest, and that the law under which the warrant was issued was unconstitutional), the new note, with security, was executed, and Glidewell was immediately released. Bass then promptly proceeded to Halifax county and had the warrant dismissed.

In order to show fully all the circumstances under which Glidewell made the settlement, the following additional incidents should be mentioned: He had walked from his home to Victoria to get medicine for his sick child, but whether Bass was informed of this fact does not appear. The child's illness does not seem to have been regarded very seriously by him, as he remained in Victoria for some time after the settlement was made. He was told by Bass that unless the matter was settled he would not be released, but would be taken before the Halifax justice, and would certainly be convicted. After his arrest, he was not confined in jail, was allowed to stay at his brother's home, apparently without guard, was subjected to no harsh or oppressive treatment by the officers, but was kept under formal arrest from 3 o'clock in the afternoon until the settlement was concluded about 11 o'clock that night. During the negotiations, Bass refused to release the prisoner upon an offer by the latter's counsel to be responsible for his appearance to answer the warrant at a future day.

Shortly after the termination, in the manner already set out, of the criminal prosecution against Glidewell, he instituted the present proceeding, by notice of motion, against Murray-Lacy & Co. and T. J. Bass, to recover damages of them alleged to have resulted from his arrest and imprisonment. The notice charged that the defendants wrongfully, unlawfully, and maliciously sued out a criminal warrant against the plaintiff, and caused his arrest thereunder, "not for the purpose of enforcing the criminal laws of the commonwealth, but solely for the ulterior and unlawful purpose of enforcing the collection of a debt of which plaintiff would otherwise have been discharged." The notice, which was entirely informal, did not attempt to designate eo nomine the cause of action; but the petition upon which this writ of error was granted interprets it as "a tort consisting of the abuse of process in using the criminal law to collect a debt." The case, as attempted to be made out by the plaintiff, was tried upon this interpretation, and we shall deal with it accordingly.

Upon the trial, there was a verdict and judgment for the defendants.

The cause of action sought to be maintained in this proceeding is not malicious prosecution or false imprisonment, but the kindred, though less common one, of abuse of process. So far as we know, there is no Virginia case upon the subject. It is well settled, however, as a general proposition of law, that abuse of process, as distinguished from malicious prosecution and from false imprisonment, may constitute an independent cause of action.

The distinctive nature of an action for abuse of process, as compared with the actions for malicious prosecution and 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.

In Wood v. Graves, 144 Mass. 365, 11 N. E. 567, 59 Am. Rep. 95, the court said:

"There is no doubt that an action lies for the malicious abuse of lawful process, civil or criminal. It is to be assumed, in such a case, that the process was lawfully used for a just cause, and is valid in form, and that the arrest or other proceeding upon the process was justifiable and proper in its inception. But the grievance to be redressed arises in consequence of subsequent proceedings. For example, if after an arrest upon civil or criminal process the person arrested is subjected to unwarrantable insults and indignities, is treated with cruelty, is deprived of proper food, or is otherwise treated with oppression and undue hardship, he has a remedy by an action against the officer, and against others who may unite with the officer in doing the wrong."

Freeman, in a note to Bradshaw v. Frazier, 86 Am. St. Rep. 406, says:

"An action for the abuse of a process of arrest usually presupposes that the arrest under the process was proper in its inception, and is founded on grievances arising in consequence of subsequent proceedings"—citing Whitten v. Bennett, 86 Fed. 406, 30 C. C. A. 140; Wood v. Graves, supra.

In 1 Ruling Case Law, pp. 101, 102, with reference to this particular cause of action, it is said:

"There has been considerable confusion in the books as to the scope of the action for abuse of process, and numerous cases may be found where it has been confounded with other classes of actions. * * * Abuse of process consists in the malicious misuse or misapplication of that process to accomplish some purpose not warranted or commanded by the writ. In brief, it is the malicious perversion of a regularly issued process whereby a result not lawfully or properly attainable under it is secured. * * * The cases based upon a pure abuse of process are comparatively few, though there are numerous cases referred to and cited as such which are in fact actions for malicious prosecution. * * * The distinctive nature of an action for malicious abuse of process, as com-pared with an action for malicious prosecution, is that it lies for the improper use of process after it has been issued, not for maliciously causing process to issue."

In Cooley on Torts (3d Ed.) p. 355, the author says:

"Two elements are necessary to an action for the malicious abuse of legal process: First, the existence of an ulterior purpose; and, second, an act in the use of the process not proper in the regular prosecution of the proceeding. Regular and legitimate use of process, though with a bad intention, is not a malicious abuse of process." (Italics added.)

See, also, to the same general effect as the foregoing, 32 Cyc. 541; 3 Ann. Gas. 722, note; Malone v. Belcher, Ann. Cas. 1915A, 830, note 831, 832.

The civil injury now under discussion is sometimes referred to, even by the same text-writers and in the same judicial opinions, as "malicious abuse of process, " and at other times merely as "abuse of process." This alternative use of these expressions is not usually intended to be discriminative, but there is at least a conflict of statement in the authorities as to the necessity of averring and proving malice in cases of this character. 3 Ann. Cas. 722; Ann. Cas. 1915A, 832. It seems to us, however, that there is no reason for any confusion of thought, or for any difference of opinion, as to the part which malice plays in such cases. The true rule would plainly seem to be that it is not necessary to allege or prove that the process was maliciously sued out, as in malicious prosecution, but that it is necessary to allege and prove that the process, after being properly sued out, was maliciously misused or abused. The authorities are practically unanimous in...