Green v. Norton, 7 Div. 399

• Court: Supreme Court of Alabama
• Writing for the Court: GARDNER, Justice.
• Citation: 172 So. 634,233 Ala. 489
• Decision Date: 18 February 1937
• Docket Number: 7 Div. 399
• Parties: GREEN v. NORTON.

172 So. 634

233 Ala. 489

GREEN
v.
NORTON.

7 Div. 399

Supreme Court of Alabama

February 18, 1937

Appeal from Circuit Court, Calhoun County; Lamar Field, Judge.

Suit for malicious prosecution by Mark Green, a minor suing by his next friend and father, Henry Green, against W.A. Norton. From a judgment for defendant, plaintiff appeals.

Affirmed.

Harvey A. Emerson, of Anniston, for appellant.

Merrill, Jones & Whiteside, of Anniston, for appellee.

GARDNER, Justice.

There was verdict and judgment for defendant in this action of malicious prosecution, and plaintiff appeals.

The assignments of error relate to a few questions as to evidence, and the refusal of charge 1, requested by the plaintiff. Under the view here entertained, they need no separate treatment for the reason the conclusion has been reached that defendant was, upon the undisputed proof, due to be given in his behalf the affirmative charge duly requested. Approvingly quoted in Molton Realty Co. v. Murchison, 212 Ala. 561, 103 So. 651, 652, is the following from 2 Thompson's Trials: "No rule of law is better settled, both in England and in America, *** than that in civil actions for damages for the malicious prosecution of a criminal action the question of probable cause is a question of law, which the judge must decide upon established or conceded facts, and which it is error for him to submit to the jury." See, also, United States Cast Iron Pipe & Foundry Co. v. Henderson, 22 Ala.App. 448, 116 So. 915, 917; McMullen v. Daniel, 229 Ala. 194, 155 So. 687; American Rwy. Express Co. v. Summers, 208 Ala. 531, 94 So. 737; Elliott v. Caheen Bros., 228 Ala. 432, 153 So. 613. [172 So. 635]

And in Gulsby v. Louisville and Nashville R.R. Co., 167 Ala. 122, 52 So. 392, 395, are the following observations here pertinent: "Appellant insists that the evidence was not sufficient to authorize the submission of probable cause vel non to the jury. The court below took the opposite view and so submitted the issue. Whether the plaintiff was in fact guilty of the offense is not a controlling inquiry on this issue. McLeod v. McLeod, supra [75 Ala. 483]. The question is, Were the known (to the prosecution) facts and circumstances sufficient, regardless of the unfavorable (to the state) event of the prosecution, to justify a reasonable and cautious man in believing the plaintiff guilty? The consequence necessarily is that a want of knowledge of sufficient evidence to convict the accused of the offense charged is not the test of probable cause vel non. And it is necessarily a corollary that the facts and...