Haddad v. Chesapeake & O. Ry. Co

• Citation: 88 S.E. 1038
• Decision Date: 07 March 1916
• Docket Number: (No. 2767.)
• Court: Supreme Court of West Virginia
• Parties: HADDAD. v. CHESAPEAKE & O. RY. CO.

88 S.E. 1038

HADDAD.
v.
CHESAPEAKE & O. RY. CO.

(No. 2767.)

Supreme Court of Appeals of West Virginia.

March 7, 1916.

Rehearing Denied June 2, 1916.

(Syllabus by the Court.)

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, both of Charleston, for plaintiff in error.

Enslow, Fltzpatrick & Baker, of Huntington, for defendant in error.

LYNCH, J. 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 case. 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 reinforced 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, 105 N. W. 638, 114 Am. St. Rep. 711:

"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 that 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...