Hoffman v. Hastings
| Decision Date | 05 March 1935 |
| Docket Number | (CC 522) |
| Citation | 116 W.Va. 151 |
| Parties | George Hoffman v. Gertrude Hastings |
| Court | West Virginia Supreme Court |
1. Malicious Prosecution
In a declaration for malicious prosecution the averment that the defendant "falsely and maliciously without any reasonable or probable cause whatsoever, charged the said plaintiff with having unlawfully trespassed upon the following personal property, not his own, to-wit: 'The Central Fishing Boats' being the property of Gertrude Hastings;" is sufficient on the element of malice.
2. Malicious Prosecution
Where a declaration for malicious prosecution shows upon its face that the plaintiff was convicted by a justice of the peace of the offense charged to have been maliciously prosecuted by the defendant, and that upon an appeal from that conviction the case against the plaintiif was dismissed, the declaration is bad upon demurrer, since the conviction before the justice, notwithstanding the subsequent appeal and dismissal, is conclusive of the existence of probable cause for the prosecution.
3. Malicious Prosecution
Where, upon demurrer to a declaration for malicious prosecution, the declaration shows upon its lace that the plaintiif was convicted by a justice of the peace of the offense charged to have been maliciously prosecuted by the defendant, and fraud on the part of the defendant in the procurement of such conviction is relied upon to overcome the effect of that showing, such fraud must be directly charged and the material facts upon which that charge rests must be averred.
Case Certified from Circuit Court, Ohio County.
Trespass on the case by George Hoffman against Gertrude Hastings. The circuit court on demurrer to the declaration overruled the first ground of demurrer and sustained the second, and certified its action to the Supreme Court of Appeals.
Affirmed.
J. B. Allison, for plaintiff.
Howard & Howard, for defendant,
George Hoffman brought an action of trespass on the case for malicious prosecution against Gertrude Hastings in the circuit court of Ohio County. A demurrer to the plaintiff's declaration was interposed assigning two grounds, first, that the declaration fails to set forth the alleged malicious conduct of the defendant on which it is predicated, and second, that the declaration shows on its face a judgment of conviction of plaintiff which is conclusive evidence of probable cause. The circuit court overruled the first ground of demurrer and sustained the second, certifying its action to this Court.
On the first ground of demurrer, the defendant relies upon the case of Tavenner v. Morehead, 41 W. Va. 116, 23 S. E. 673. That case undoubtedly holds that in a declaration for malicious prosecution the plaintiff must set forth the alleged malicious conduct of the defendant and that otherwise the declaration is demurrable. It holds that the averment that the defendant "falsely and maliciously caused and procured to be sued and prosecuted out of the circuit court for the county of Ritchie in said state a certain order and attachment * * *" is not sufficient and indicates quite clearly that in order to make the averment sufficient, the allegation must set forth in detail what particular false and malicious thing, such as making an affidavit or a false statement, the defendant did. No authorities are cited to sustain this position other than the forms contained in 1 Barton's Law Practice, page 338, and Hogg's Pleading & Forms, page 337. The only difference between the averments contained in the forms referred to and the declaration before the court in the Tavenner case is that in the forms, which relate to the malicious prosecution of the plaintiff for a specific offense, it is averred that the defendant falsely and maliciously charged the offense which is described, whereas, in the Tavenner case, the charge was that the defendant had falsely and maliciously caused the order of attachment to issue, not charging upon what false and malicious ground the attachment was based. Here, the declaration is good even by the standards set in the Tavenner case, because it does aver that the defendant falsely and maliciously charged before a justice of the peace that the plaintiff committed a criminal trespass and describes the trespass. It may, however, be seriously doubted that the narrow rule laid down in the Tavenner case conforms to the weight of authority. The only similar holding' that we have been able to find is in the Kentucky case of Hagerman v. Sutherland, 16 Ky. Law Rep. 301, 27 S. W. 932. But, in the later case of Graziani v. Ernst et al., 169 Ky. 751, 185 S. W. 99, the Kentucky court seems to have gotten back to the general rule, which is that a general averment to the effect that the defendant acted maliciously in instituting the prosecution against the plaintiff is sufficient allegation of that element of a cause of action for malicious prosecution, and that the averment need not deal with the detail of the defendant's conduct in so doing. It is not necessary for us here to go fully into the question, because we are of opinion that it does not directly arise on this record, but the authorities are readily available by reference to 13 Am. & Eng. Ency. P1. & Pr., page 427, Century Edition of the American Digest, Paragraph 97, under the title...
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