Haddad v. Chesapeake

Decision Date07 March 1916
Docket NumberNo. 2767.,2767.
Citation77 W.Va. 710
CourtWest Virginia Supreme Court
PartiesHaddad v. Chesapeake & Ohio Railway Co.

1. Malicious Prosecution-Probable Cause Proof Conviction

Procurement by Fraud,

A judgment of conviction for larceny, although reversed on writ of error and the accused discharged from further prosecution on remand of the case, is conclusive evidence of probable cause for believing the acsused guilty of the offense charged to him, unless the conviction was procured by fraud; and on plaintiff in an action for malicious prosecution devolves the duty of averring and by convincing proof showing such fraud or other undue means, (p. 711).

2. Same "Probable Cause."

Ordinarily, probable cause may arise out of such conduct on the part of the accused, or such facts and circumstances, as would induce a reasonably cautious and prudent man, acting in good faith, to believe the accused guilty of the offense imputed to him. (p. 711).

3. Same: Probable Cause Motives of Prosecutor Materiality.

When such cause may reasonably be said to exist, the motives prompting the formal accusation become immaterial, on the ground of public policy, (p. 711).

Error to Circuit Court, Kanawha County.

Action by Tamamy Haddad against the Chesapeake & Ohio Railway Company. Judgment for defendant, and plaintiff brings error.

Affirmed.

Maynard F. Stiles and Adam B. Littlepage, for plaintiff in error.

Enslow, Fitzpatrick & Baker, for defendant in error.

Lynch, Judge:

Plaintiff complains of the rulings of the trial court upon defendant's demurrer, sustained, to her declaration, and nil capiat judgment, she having elected to stand on the averments of the first count thereof and declined to amend it. The action is trespass on the case for malicious prosecution. The declaration charges, in extenso, that defendant, without probable cause, maliciously procured the arrest, indictment and conviction of plaintiff in the intermediate court of Kanawha county for larceny, reversal of the judgment and award of a new trial on writ of error to the circuit court of the county, her subsequent discharge from custody and dismissal by nolle prosequi from further prosecution. The reason alleged for the reversal was the trial court's misconception of the law of the case, and the resultant misdirection of the jury that rendered the verdict in the criminal proceeding.

To recover in an action for malicious prosecution, plaintiff must aver and prove malice, and want of probable cause for the criminal or civil proceeding alleged to be malicious. Although both elements are essential, yet if defendant in a civil action had probable cause for the criminal prosecution the malice prompting it thereby becomes immaterial, for reasons of public policy.

No invariable rule has been or can be prescribed for determining what facts or circumstances may authorize an inference of probable cause in any given ease. Generally, however, when limited to criminal offenses, it may be said that probable cause arises out of facts and circumstances sufficiently cogent and persuasive to induce a prudent and cautious man, acting in good faith and from justifiable motives, to believe the accused guilty.

This inference of guilt is re-enforced by each successive stage of the proceeding until it finally results in a conviction. The issuance of a warrant of arrest, the commitment or requirement of bail to answer an indictment, and presentment by a grand jury tend to strengthen the presumption or inference of the probability of guilt. Of this generally recognized proposition it is said in Skeffington v. Eylward, 97 Minn. 244: "Ordinarily if a court having jurisdiction has, upon a full and fair trial, proceeded to conviction it must have had before it such evidence as would convince a prudent and reasonable man of the guilt of the accused. Therefore, while a subsequent reversal may show that the accused was in fact innocent, yet it does not show there was no probable cause for believing him guilty". And an unreversed judgment of conviction is conclusive evidence of probable cause, and prevents recovery in an action for malicious prosecution.

But what effect shall be given in such action to a verdict and judgment which on appellate process are reversed and the accused discharged from further prosecution on the remand of the case, is a question as to which exists a great variety of discordant views. The courts of some jurisdictions have held that, when it appears from the allegations in the declaration, admitted to be true on demurrer, the conviction resulted from a misconception of the law of the case, as averred in this action, while not restoring plaintiff to her status before the trial under the indictment, the conviction is prima facie proof of probable cause, and, unless overcome by testimony of such preponderant weight as to establish in the mind of the court want of probable cause, the burden of which devolves on plaintiff, the presumption will defeat recovery by her. According to Skeffington v. Eylward, supra, '1 in an action for malicious prosecution a conviction of the plaintiff which was reversed on appeal is not conclusive, but strong prima facie evidence of probable cause, which may be rebutted by evidence tending to show that the conviction was procured by fraud or perjury, and also by any competent evidence which satisfies the jury that the prosecutor did not have probable cause for instituting the prosecution". This conclusion finds approval in Goodrich v. Warner, 21 Conn. 432, holding conclusive a conviction by a justice until reversed, and thereafter prima facie evidence of probable cause and as such "entitled to great consideration"; in Olson v. Neal, 63 la. 214, and Miller v. Bunkle, 137 la. 155, holding a reversed judgment of a magistrate prima facie and not conclusive evidence of probable cause, subject to contradiction by proof sufficient to show want of probable cause or that the judgment was without foundation in law, and that if not so contradicted or impeached the judgment will of itself establish the existence of probable cause and thereby defeat recovery in the subsequent action; in Maynard v. Sigman, 63 Neb. 590. holding that the presumption arising from the reversed judgment of conviction rendered by a justice may be rebutted by evidence which destroys the natural probative force of the verdict or judgment; and in Nicholson v. Sternberg, 70 N. Y. S. 212, holding that a like inference based on a judgment of conviction by a justice may be destroyed by proof of fraud in its procurement or of any other facts and circumstances bearing on the subject, thus making the question of probable cause one of fact for the jury upon all the evidence in the case.

In New York it is to be observed from Nicholson v. Steinberg, supra, and Francisco v. Schmeelk, 141 N. Y. S....

To continue reading

Request your trial
25 cases
  • Randol v. Kline's, Inc.
    • United States
    • Missouri Supreme Court
    • April 28, 1932
    ...156 App. Div. 235; Fones v. Murdock, 80 Ore. 340, 157 Pac. 148; Saunders v. Baldwin, 122 Va. 431, 71 S.E. 620; Haddad v. Chesapeake & O. Ry. Co., 77 W. Va. 710, 88 S.E. 1038; Topolewski v. Packing Co., 143 Wis. 52, 126 N.W. 554. (b) There is no such proof of fraud, false testimony, corrupti......
  • Thomas v. Beckley Music & Elec. Co., 12083
    • United States
    • West Virginia Supreme Court
    • November 21, 1961
    ...Wyatt v. Gridella, 82 W.Va. 266, 95 S.E. 956, L.R.A.1918D, 1101; Sudnick v. Kohn, 81 W.Va. 492, 94 S.E. 962; Haddad v. Chesapeake & Ohio Railway Co., 77 W.Va. 710, 88 S.E. 1038, L.R.A.1916F, 192; Bailey v. Gollehon, 76 W.Va. 322, 85 S.E. 556, 723; Waldron v. Sperry, 53 W.Va. 116, 44 S.E. 28......
  • Randol v. Kline's Incorporated
    • United States
    • Missouri Supreme Court
    • April 5, 1929
    ...Packing Co., 143 Wis. 52; Schnider v. Montross, 158 Mich. 263; Smith v. Parman, 102 Kan. 787; Saunders v. Baldwin, 112 Va. 431; Haddad v. Ry. Co., 77 W. Va. 710; Francisco v. Schmeelk, 141 N.Y. Supp. 402; Phillips v. Kalamazoo, 53 Mich. 33; Blucher v. Zonker, 19 Ind. App. 615; McElroy v. Ca......
  • Randol v. Kline's Inc.
    • United States
    • Missouri Supreme Court
    • April 5, 1929
    ... ... Co., 143 Wis. 52; Schnider v. Montross, 158 ... Mich. 263; Smith v. Parman, 102 Kan. 787; ... Saunders v. Baldwin, 112 Va. 431; Haddad v. Ry ... Co., 77 W.Va. 710; Francisco v. Schmeelk, 141 ... N.Y.S. 402; Philips v. Kalamazoo, 53 Mich. 33; ... Blucher v. Zonker, 19 ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT