Hanson v. Couch

• Decision Date: 16 June 1978
• Citation: 360 So.2d 942
• Parties: Kenneth HANSON v. Elton COUCH and Moore Business Forms, Inc. SC 2619.
• Court: Alabama Supreme Court

Page 942

360 So.2d 942

Kenneth HANSON v. Elton COUCH and Moore Business Forms, Inc.

SC 2619.

Supreme Court of Alabama.

June 16, 1978.

Rehearing Denied July 14, 1978.

Charles Y. Boyd, of Rhea, Boyd & Pitts, Gadsden, for appellant.

Eugene D. Martenson, of Huie, Fernambucq, Stewart & Smith, Birmingham, for appellees.

PER CURIAM.

This is an appeal by Kenneth Hanson from a judgment entered in favor of defendants Elton Couch and Moore Business Forms, Inc., pursuant to an order of the trial court granting defendants' motion for judgment notwithstanding the verdict.

Hanson filed suit against Couch and Moore Business Forms seeking damages for malicious prosecution. The complaint alleged that Couch, acting as an agent of Moore Business Forms, caused a warrant to issue against Hanson for the malicious destruction of private property; that the case was "no billed" by the grand jury; and that the action was commenced and prosecuted by defendants maliciously and without probable cause. Couch and Moore Business Forms answered generally, denying the allegations of the complaint.

Trial was before a jury and at the conclusion of the evidence Couch and Moore Business Forms moved for a directed verdict. The motion was denied, the case went to the jury, and a verdict was returned in favor of Hanson in the amount of $75,000. Thereafter Couch and Moore Business Forms filed motion for judgment notwithstanding the verdict or, in the alternative, new trial. The trial court granted judgment notwithstanding the verdict, stating in its order:

"The Court finds that there were no disputed facts in this case and that all facts were presented to the attorneys for advice prior to initiating criminal action against plaintiff. The law is that full disclosure of the facts to an attorney and reliance on advice from him negates want of probable cause. Lewis v. Dothan Drug, 247 Ala. 279 (24 So.2d 119); Bell v. Seals Piano & Organ Co., 201 Ala. 428 (78 So. 806); Crimm v. Crimm, 39 Ala.App. 413 (101 So.2d 845).

"Where the facts are undisputed, and in this case consisted of a film which was viewed, the question of probable cause is to be determined by the Court.

"Roughton v. Jackson, 33 (37) Ala.App. 17 (64 So.2d 112). The Court so determines there was probable cause from viewing the film.

"It is ORDERED that said motion of defendants be, and it hereby is granted; and judgment heretofore entered in favor of the plaintiff and against the defendants is hereby vacated and set aside.

"It is further ORDERED the judgment for defendants shall be entered by the Clerk."

From the entry of that judgment, Hanson perfected this appeal. Couch and Moore Business Forms filed a cross appeal, challenging the trial court's failure to rule on their alternative motion for new trial.

This action arose from a prolonged labor dispute between Moore Business Forms and its employees. Hanson, an employee of Moore Business Forms, was considered a spokesman for the striking employees. The incident which led to the issuance of the warrant occurred on the morning of March 28, 1974, when a tractor-trailer truck owned by Moore Business Forms tried to deliver products at its Heflin, Alabama, plant site where a picket line had been set up by the striking employees. On this occasion air hoses and electrical cables between the tractor and trailer were cut. Some of the events were filmed by a cameraman hired by Moore Business Forms.

The dispositive question on this appeal is whether the trial court erred by entering the order granting judgment notwithstanding the verdict in favor of the defendants Couch and Moore Business Forms.

A motion for judgment notwithstanding the verdict tests the sufficiency of the evidence in the same way as does the motion for directed verdict at the close of all the evidence. Ala.R.Civ.P. 50, Committee Comments. Granting the motion for judgment notwithstanding the verdict says, without weighing the credibility of the evidence, there can be but one reasonable conclusion from the evidence as to the proper judgment. 5A Moore's Federal Practice P 50.07(2), at p. 50-76.

When reviewing the propriety of a trial court's order granting a motion for judgment notwithstanding the verdict, the evidence must be viewed in the light most favorable to the party who secured the jury verdict. Spurlin v. General Motors Corp., 528 F.2d 612 (5th Cir. 1976); White v. Packer, 345 So.2d 312 (Ala.Civ.App.1977). See Justice Maddox's dissent in Bethune v. City of Mountain Brook, 336 So.2d 148, at p. 151 (Ala.1976). Such motion should be denied if there is any conflict in the evidence for the jury to resolve and the existence of such conflict is to be determined by the scintilla rule. White v. Packer, supra; McLarty v. Wright, 56 Ala.App. 346, 321 So.2d 687 (1975).

With these principles in mind, we proceed to address the following questions raised on appeal:

1. Did the trial court err in finding reliance on advice of counsel a complete defense; and

2. Did the trial court err in ruling on the question of probable cause as a matter of law?

We answer both questions in the negative and therefore affirm the decision of the trial court for the reasons hereinafter discussed.

I Advice of Counsel

It is well settled in this state that advice of counsel, honestly sought and acted on in good faith, supplies an indispensable element of probable cause for legal action and is a complete defense to an action for malicious prosecution. Birwood Paper Co. v. Damsky, 285 Ala. 127, 229 So.2d 514 (1969); Broussard v. Brown, 353 So.2d 804 (Ala.Civ.App.1978). To prevail on this defense, it must be shown factually that the attorney's advice was given on a full and fair statement of all the facts and circumstances known to the prosecutor, in this instance, Couch. Birwood Paper Co. v. Damsky, supra; Broussard v. Brown, supra.

A review of the record shows that Couch sought the advice of two attorneys employed by Moore Business Forms prior to initiating the criminal action against Hanson. Couch testified that both attorneys "had viewed the film and the evidence and made this decision" that Couch had just cause to swear out the warrant against Hanson. The attorneys themselves testified that they viewed the film several times and researched the legal issues involved before advising Couch concerning the warrant. One attorney further testified that he consulted with Couch concerning Hanson's conduct during the time of the cutting of the air hoses and talked personally with witnesses who later testified at the trial of this cause about the events in question prior to giving his advice to Couch.

Thus we believe that the evidence clearly shows that Couch provided his attorneys with the relevant facts of which he had knowledge concerning the hose-cutting incident leading to the warrant.

II Probable Cause

Hanson secondly contends that the trial court committed reversible error in finding the evidence on the issue of probable cause undisputed and determining, as a matter of law, that probable cause arose from viewing the film. Therefore, on this aspect of the appeal, we focus primarily on whether the trial court could rule on the issue of probable cause as a matter of law.

Probable cause, as the term is used in malicious prosecution actions, is defined as:

" '. . . 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.' "

Birwood Paper Co. v. Damsky, supra, 285 Ala. at p. 134, 229 So.2d at p. 521. Consequently, this court has found that the question in an action for malicious prosecution arising from a criminal charge is whether the defendant, at the time he instituted the prosecution, had probable cause to believe that the accused was guilty. S. S. Kresge Co. v. Ruby, 348 So.2d 484 (Ala.1977); Gulsby v. Louisville & Nashville R.R. Co., 167 Ala. 122, 52 So. 392 (1910).

In Key v. Dozier, 252 Ala. 631, 634, 42 So.2d 254, 256 (1949), this court said:

". . . (I)f the facts on the issue of probable cause are not in dispute, whether such facts amount to probable cause is a question of law for the court. . . . But it is equally true that if the facts or any necessary particular fact on the issue of probable cause is in dispute, then there must be a submission to the jury to find the facts." (Citations omitted.)

Thus, the issue raised here is whether material facts showing the existence of probable cause at the time of the institution of criminal proceedings by Couch against Hanson were in dispute so as to require a determination by the trier of facts, the jury. We think not. The film established probable cause for the issuance of the warrant. We therefore find that the trial court could properly rule as a matter of law that the proof in the present case showed probable cause at the time of the decision to swear out the warrant against Hanson.

For the reasons stated above, we think the evidence in this action on both issues raised was so conclusive as to allow the trial court to set aside the verdict of the jury and substitute its own judgment in lieu thereof. Accordingly, the judgment in favor of Couch and Moore Business Forms entered pursuant to the order granting their motion for judgment notwithstanding the verdict is affirmed.

The Cross Appeal

According to Rule 50(c)(1), Alabama Rules of Civil Procedure, if a motion for judgment notwithstanding the verdict is granted:

". . . the (trial) court shall also rule on the motion for a new trial, if any, by determining whether it should be granted if the judgment is thereafter vacated or reversed, and shall specify the grounds for granting or denying the motion for the new trial. . . ."

As is evident by the trial court's order set forth earlier in this opinion, the trial court failed or declined to rule on the defendants' alternative motion for new trial. Where the trial court has failed to rule on the motion for a...