Grenada Coco Cola Co. v. Davis

Citation151 So. 743,168 Miss. 826
Decision Date08 January 1934
Docket Number30952
CourtUnited States State Supreme Court of Mississippi
PartiesGRENADA COCO COLA CO. et al. v. DAVIS

Division B

Suggestion Of Error Overruled February 5, 1934.

APPEAL from circuit court of Yalobusha county HON. JNO. M KUYKENDALL, Judge.

Action by T. Davis against the Grenada Coco Cola Company and others. Judgment for plaintiff, and defendants appeal. Affirmed

Affirmed.

Cilman Woods and Kermit R. Cofer, both of Water Valley, for appellants.

The instruction for a directed verdict for the defendants should have been given as the proof fails to show that the appellants, here, did anything to cause the arrest and prosecution of appellee.

To maintain an action for malicious prosecution the plaintiff must show that the defendant therein was responsible for the institution or continuance of the original proceedings complained of.

18 R. C. L. 17.

The proof shows that the justice of the peace concluded the law had been violated and issued a warrant for the arrest of appellee, without any one asking or advising him to do so.

One who discloses to a police officer all facts within his knowledge having a material bearing on the question of the guilt of the person suspected and who leaves it to the officer to act entirely on his own judgment and responsibility as a public officer as to whether or not there shall be a criminal prosecution is not liable in an action for malicious prosecution by reason of the erroneous conclusion of the officer that the facts warrant him in instituting a criminal prosecution.

38 C. J. 397.

The inference (of malice) is not one of law but merely a presumption of fact which may be rebutted and is one which the jury is not required to draw and which it should not draw if other facts disclosed by the evidence lead to a different conclusion.

38 C. J. 427; Vicksburg S. & P. R. Co. v. Porterfield, 60 So. 652; 18 R. C. L. 31.

In an action for malicious prosecution where the facts are shown in evidence, it is error to instruct the jury that the acquittal by the court before which the plaintiff was tried and acquitted was prima facie evidence of want of probable cause.

Ray v. Patrick, 1 Miss. Dec. 162; Greenwade v. Mills, 31 Miss. 464; Whitfield v. Westbrook, 40 Miss. 311.

While there is some authority to the contrary, it has very generally been held that where a party in good faith makes a full and truthful statement of facts to a magistrate and the magistrate acts thereon and issues a warrant or does some other act which the law does not justify, mistakenly believing the facts so stated to constitute an offense, the party making the statements is not liable as for a malicious prosecution.

38 C. J. 396, 397; Chambliss v. Blau, 127 Ala. 86, 28 So. 602.

The presumption is that an officer will act within his authority.

Teal v. Fissel, 28 F. 851; Chambliss v. Blau, 127 Ala. 86; Krause v. Spiegle, 94 Cal. 370; Wilmerton v. Sample, 42 Ill. 254; McNeely v. Driskill, 2 Blackf. 259; Newman v. Davis, 58 Iowa 447; Gibbs v. Ames, 119 Mass. 60; Cole v. Andrews, 74 Minn. 93; Thaule v. Krekeler, 81 N.Y. 428; Oakley v. Tate, 118 N.C. 361; Schwatka v. Davidson, 70 Pa.Super. 362; Smith v. Clarke, 37 Utah 116.

The evidence of acquittal is admissible of course in showing that the prosecution has terminated favorably to the accused, but is generally held that its consideration should be limited to that purpose.

Ray v. Patrick, 1 Miss. Dec. 162; Greenwade v. Mills, 31 Miss. 464; Whitfield v. Westbrook, 40 Miss. 311; Planters Ins. Co. v. Williams, 60 Miss. 916.

John Horan, of Water Valley, for appellee.

Punitive or exemplary damages is the gist of this lawsuit. And if plaintiff was prosecuted for having given a bad check for previous purchases then the prosecution was without probable cause, and if without cause it was malicious within the meaning of the law, and plaintiff is entitled to punitive damages.

Odum v. Tally, 134 So. 163.

If H. L. Honeycutt was secretary to the company, as was testified to, and was acting within the scope of his authority, as it certainly was not disputed, when he authorized and instituted prosecution against plaintiff, then the principal is liable for his act.

Fisher v. Westmoreland, 101 Miss. 180; Mask v. Rowls, 57 Miss. 270.

Probable cause in an action for malicious prosecution is a mixed proposition of law and fact, and the want of probable cause is a circumstance from which a jury may infer malice.

Whitfield v. Westbrook, 40 Miss. 311; Vicksburg S. & P. R. Co. v. Porterfield, 60 So. 652; Medlin v. Clarksdale Steam Laundry et al., 101 So. 557.

If the facts are undisputed it then becomes a question of law to be determined by the court.

Greenwade v. Mills, 31 Miss. 464; McNulty v. Walker, 64 Miss. 198; Whitfield v. Westbrook, 40 Miss. 311.

The amount of punitive damages awarded is for the jurors sound judgment in a proper case, and its award will not be interfered with unless so apparently excessive as to show passion and prejudice.

Y. & M. V. R. Co. v. May, 61 So. 449; G. & S. I. R. Co. v. Riley Mer. Co., 104 So. 80.

Creekmore & Creekmore, of Jackson, for appellee.

This case is controlled by Odum v. Tally, 160 Miss. 797, 134 So. 163, wherein the court held that the institution of criminal proceedings under the bad check laws, if merely for the purpose of collecting a debt, would render the prosecution malicious.

The rule is well settled that the jury may infer malice from want of probable cause, and it has been said that ordinarily it does so.

38 C. J. 425; Whitfield v. Westbrook, 40 Miss. 311.

The discharge and acquittal of a party by the court before whom he was tried on the charge of larceny, is prima facie evidence of the want of probable cause for the prosecution.

Whitfield v. Westbrook, 40 Miss. 311.

The advice of unprofessional persons, not practicing lawyers, although they may be connected with the administration of the law indirectly, and although they may be magistrates or formerly may have been magistrates, is insufficient and inadmissible to show probable cause or excuse the want of it, or to establish the absence of malice, and the fact that the magistrate is also an attorney at law does not affect the operation of the rule where the advice is given not as an attorney but as a magistrate.

38 C. J. 431; Shannon v. Sims, 146 Ala. 673, 40 So. 574.

OPINION

Griffith, J.

On September 29, 1931, appellee gave to appellant company a check for fifty-two dollars and eighty cents which was not paid on presentation to the bank and has never been paid. During the month of March, 1932, after several unsuccessful attempts to secure the payment of the check, appellant company placed it in the hands of a justice of the peace who was acting in the double capacity of a collection agent and officer. The collecting agent experienced a similar failure to collect after demand was made, and on March 28, 1932, the justice of the peace sent to the acting general manager of appellant company a blank form of an affidavit in criminal cases and requested that he sign and return. The acting general manager signed the blank form of affidavit, and upon its receipt the justice of the peace filled it out making a charge of felony against appellee for a violation of what is commonly called "the bad check law" (Code 1930 sections 923-925), and a warrant for the arrest of appellee was issued and executed. After...

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