Hall v. Am. Inv. Co.

• Decision Date: 03 January 1928
• Docket Number: No. 46.,46.
• Citation: 217 N.W. 18,241 Mich. 349
• Parties: HALL v. AMERICAN INV. CO.
• Court: Michigan Supreme Court

241 Mich. 349

217 N.W. 18

HALL

v.AMERICAN INV. CO.

No. 46. ^*

Supreme Court of Michigan.

Jan. 3, 1928.

Error to Circuit Court, Jackson County; James A. Parkinson, Judge.

Action by Jerry Hall against the American Investment Company for malicious prosecution. Judgment for plaintiff, and defendant brings error. Affirmed.

Argued before the Entire Bench. Haskell L. Nichols, Cleveland G. Parshall, and Reuben H. Rossman, all of Jackson, for appellant.

J. Adrian Rosenburg and Frank L. Blackman, both of Jackson, for appellee.

FLANNIGAN, J.

This is an action for malicious prosecution. Plaintiff, a colored man 34 years old, is an ordained minister of the gospel in charge of the Church of God in the Risen Christ, located at Jackson, Mich. He has a wife, but no children. The congregation is small and poor, affording him but about $20 monthly from its collections. To support himself and wife it was necessary that he seek other employment as and where offered. At different times he was employed in Detroit and at the Michigan Central junction and Jackson Fence Company in Jackson. When not otherwise occupied, he solicited insurance for the Detroit Casualty Company. He seems to have justly borne a good reputation, and to have had the good will of his neighbors, white and colored.

He purchased on conditional sale contract from the B. & H. Motor Company a second-hand automobile. The price was $948.08, of which he paid $320 in cash, and agreed to pay the remainder in 12 monthly installments of $52.34 each, beginning with March 6, 1926. The contract was assigned by the B. & H. Motor Company to defendant, and Bernard W. Brighton was appointed its agent in connection with the handling of the contract and collection of the various installments.

On September 16, 1926, Brighton swore to a criminal complaint charging plaintiff with violation of section 15385, 3 Comp. Laws 1915, in that he fraudulently disposed of and concealed the automobile in question with intent to defraud defendant. The issue of a warrant on this complaint was authorized in writing by the prosecuting attorney. Plaintiff was arrested at his home on the afternoon of the same day, taken to the police station, and locked up. He remained in his cell until the following morning, when he was taken before a magistrate. The proceedings before the magistrate resulted in his being sent to the county jail, where he was kept in confinement until, by paying $25 for a bond, he was able to arrange his release on September 18, 1926. He was before the magistrate for examination on October 7, 1926, when the proceeding against him was dismissed on motion of the prosecuting attorney.

Plaintiff paid some installments on time, others behind time, and others not at all. August 29, 1926, about $130 was due and unpaid on the contract. Oin that day plaintiff was conducting religious services at his church at Jackson. The car was parked in front of the church. Brighton went to the church, and, after the services, demanded of plaintiff payment in full, or return of the car. Plaintiff was unable to pay. Brighton took possession of the car, but released it on plaintiff's promise to send money from Detroit within a few days. He took the car to Detroit with Brighton's knowledge. Furthermore, he had the right under the terms of the contract of purchase to take and use it there or at any other place in this state. After waiting a reasonable time, and receiving no money from plaintiff, Brighton instituted a search for the car with the view of taking possession thereof. In making the search he employed one or two assistants. The search consisted of nothing more than keeping an eye open for the car while driving about Jackson. Between August 29th and plaintiff's arrest on September 16th neither Brighton nor his assistants either saw or talked with plaintiff or made demand on him for return of the car or request for information regarding its location. On Sunday, September 5th, plaintiff again conducted religious services in his church at Jackson, but, contrary to his custom, he parked the car in a garage next door rather than in front of the church. He returned to Detroit the next day without calling on Brighton with reference to this matter. These and other incidents of like general character are chiefly relied upon by defendant's counsel as establishing probable cause.

Brighton testified on cross-examination:

‘Q. You had him arrested to get the automobile or the money? A. I had him arrested to get the automobile, because we could not get the money.

‘Q. Either one or the other? A. Because I could not get the money. I had him arrested because I could not get the automobile or get the money; yes, sir.

‘Q. Then your purpose in instituting this criminal prosecution was to recover that automobile or to get the money? A. Recover possession of that automobile because the money was not forthcoming.’

The declaration counted for false arrest and malicious prosecution. The count for false arrest was abandoned, and trial was had on the count for malicious prosecution.

When the proofs were in, defendant's counsel moved for direction of the verdict on the ground there was no evidence tending to show malice or want of probable cause, and on the further ground that, under the undisputed evidence, the disclosure made by Brighton to the prosecuting attorney was such as to entitle defendant to the defense of advice of counsel as a matter of law. Decision of the motion was reserved and the questions submitted for the determination of the jury as dispouted questions of fact. Plaintiff had verdict for $2,500....