Hanchey v. Brunson

• Decision Date: 28 November 1911
• Citation: 175 Ala. 236,56 So. 971
• Parties: HANCHEY v. BRUNSON.
• Court: Alabama Supreme Court

56 So. 971

175 Ala. 236

HANCHEY v. BRUNSON.

Supreme Court of Alabama

November 28, 1911

Appeal from Circuit Court, Coffee County; H. A. Pearce, Judge.

Action by William J. Hanchey against John F. Brunson. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

Somerville J., dissenting in part.

The third count was for false imprisonment, declaring on a warrant issued by R. A. King, clerk of the county court of Coffee county, on December 3, 1908, on a charge of embezzlement. The amendment proposed set up that the warrant was issued by Gus Owens, a justice of the peace of Coffee county, on December 3, 1908, on a charge of embezzlement. The facts sufficiently appear in the opinion of the court.

The following charges were refused to the plaintiff: (1) "The court charges the jury that the fact, if it be a fact, that the defendant instituted against the plaintiff prosecutions for two separate offenses on the same day, is a circumstance to which the jury may look in determining whether or not either or both of such prosecutions was begun with a malicious motive." (3) "The court charges the jury that, if they believe from the evidence in this case that the plaintiff was tried and acquitted of the charge of violating a rental contract as claimed in count 1 of the complaint, then this lifts from him the burden of showing want of probable cause as to said count." (4) "The court charges the jury that, if they find for the plaintiff as to count 1 of the complaint, they should assess the damages at such an amount as the plaintiff may have suffered as the direct, natural and proximate result of such prosecution, by reason of the loss of time required in defending himself, loss of time spent in prison, injury to same, reputation, character, and health, mental suffering general impairment of social and commercial standing, and decrease in earning capacity, the same being limited to the amount claimed in the respective count." (5) "The court charges the jury that, if they find for the plaintiff as to the first count of the complaint, they should assess the damages at such an amount as the plaintiff suffered as the direct, natural, and proximate result of such prosecution, by reason of the loss of time required," and continuing same as charge 4.

A. G Seay, for appellant.

J. A Carnley, for appellee.

MAYFIELD J.

It is not made to appear from this record whether the proposed amendment to count 3 made an entirely new cause of action, or merely described differently the same cause of action.

A prosecution instituted by affidavit before "K.," clerk of the county court, is prima facie a different prosecution from one instituted by an affidavit made before "O.," a justice of the peace, though the affiant and the crime be the same in both cases. This being true, we cannot say that the court erred in refusing to allow the proposed amendment to count 3. If it has been shown that the original and amended counts related to the same transaction and prosecution, it should have been allowed, under our liberal system; and under the statute, as last amended, the question of the identity of the causes of action relied on in the original and amended counts may be submitted to the jury. But, so far as this record shows, the prosecutions were different; and the amendment, therefore, was not allowable.

In trials for malicious prosecution, under the general issue, the burden of proof is upon the plaintiff to establish, by a preponderance of the evidence, three propositions: First, that the defendant has prosecuted complainant, or caused him to be prosecuted, as alleged in his complaint, and that the prosecution is ended; second, that the prosecution on the part of the defendant was both malicious and without probable cause; third, that in consequence of the prosecution complainant was damaged. 2 Greenl. Ev. 449, 450. In this case it was not disputed that the prosecution was instituted by the defendant, and that it was ended by the verdict of a jury, acquitting plaintiff, on a trial in a court of competent jurisdiction. So the questions in dispute were malice, probable cause on the part of the defendant in instituting the prosecution, and the damages, if any were sustained.

Malice may be inferred from the want of probable cause, if there are no circumstances to rebut the inference. It may also be inferred if the defendant's conduct will admit of no other reasonable construction. Mr. Greenleaf said: "The want of probable cause is a material averment; and, although negative in its form and character, it must be proven by the plaintiff by some affirmative evidence." There are some exceptions to the rule, not necessary here to be mentioned.

Shaw, C.J., has said that "probable cause," as the term is employed in actions for malicious prosecution, is such a state of facts in the mind of the prosecutor as would lead a man of ordinary caution and prudence to believe or entertain an honest and strong suspicion that the person arrested is guilty. Bacon v. Towne, 4 Cush. (Mass.) 238.

It has been uniformly held that the plaintiff's innocence of the charge on which the prosecution was brought, and any facts which tend to show such innocence, are admissible only as tending to prove the defendant's lack of probable cause in instituting the prosecution; and therefore it must be shown that the defendant knew of such innocence, or of such facts, when he brought the prosecution. The plaintiff's innocence does not make the prosecution malicious, nor prevent the defendant from having probable cause to believe him guilty. Therefore evidence of innocence, of which the defendant had no knowledge, and of which he was not chargeable with notice, such as facts occurring after the prosecution is begun, are not admissible for the purpose of showing malice or want of probable cause, though it may be to show that the prosecution was terminated, such as the trial and its result.

For the same reason, acts of the plaintiff occurring after the prosecution is begun, of which the defendant could have had no knowledge or notice, are not admissible to rebut malice or show probable cause at or before the prosecution was begun.

These two rules are well illustrated in the case of Killebrew v. Carlisle, 97 Ala. 535, 12 So. 167, and Josselyn v. McAllister, 25 Mich. 45. In the first case it is said: "The defendants had instituted a prosecution against plaintiff for the purpose of having him bound over to keep the peace. A part of the evidence relied on as going to show that he was about to commit breaches of the peace upon the persons of the defendants was to the effect that while defendants were in possession of the land, and engaged in gathering the crop therefrom, plaintiff went on the land, where the crop was growing, with his gun, and said that if the defendant, who had harvested a part of the crop, attempted to gather what remained of it he (the plaintiff) would shoot him. The fact of plaintiff's being there with his gun, taken in connection with the information received by defendant of the alleged threat to use it, tended to show, of course, that defendants had probable cause for believing that plaintiff intended to commit a breach of the peace. If it was plaintiff's habit 'to carry his gun with him to the field and going to his plantation to work,' and this habit was known to the defendants, evidence of it was admissible as tending to show that the presence of the weapon on the particular occasion was due to this custom of plaintiff, and not to any purpose on his part to use it in the commission of a breach of the peace; but there is no evidence that defendants had any knowledge of this habit, and we are unable to see that the fact of its existence, if wholly unknown to them, could have exerted any influence in determining the question of defendants' malice, or whether they had probable cause for believing plaintiff intended to commit violence upon their persons. Yet it is very probable that it was accorded an influence by the jury. The testimony of this habit, without any evidence that defendants knew of it, was therefore improperly admitted, and must operate a reversal of the judgment."

In the latter case, the rule is well stated in the headnote, which the opinion supports, as follows: "Malice in making an affidavit...