Hogg v. Pinckney

• Decision Date: 13 January 1882
• Docket Number: CASE No. 1134.
• Citation: 16 S.C. 387
• Parties: HOGG v. PINCKNEY.
• Court: South Carolina Supreme Court

16 S.C. 387

HOGG

v.PINCKNEY.

CASE No. 1134.

Supreme Court of South Carolina.

Jan. 13th, 1882.

1. In action for damages for malicious arrest, under bail process, upon allegations of fraud, the plaintiff should allege and prove the absence of probable cause, and, failing to do so, the complaint might properly be dismissed on demurrer orally taken at the trial; but such demurrer having been overruled and testimony upon the question of probable cause freely admitted, and a verdict rendered for plaintiff, this court, on appeal, will not disturb the judgment.

2. The existence or the want of probable cause in such case, is a mixed question of law and fact.

3. While the plaintiff should allege, in his complaint, that the order of arrest had been vacated before the commencement of his action, it was not necessary that he should also allege that the action itself, in which the arrest was made, had been ended.

4. A non-suit is only proper when there is no evidence whatever to support the material allegations of the complaint. If there is any evidence at all before the jury upon a fact at issue, the questions of law bearing upon such fact should be raised by requests to charge.

5. In actions for malicious arrest, it is not necessary (as in actions for malicious prosecutions) to prove express malice, or malice in fact. Malice in such cases defined.

6. It is not necessary, in an action like this, to prove actual damage to the party arrested; deprivation of liberty, and injury to reputation, feelings and person, will support a verdict for the plaintiff.

7. There was no error in the charge, that the jury might infer malice from the want of probable cause.

8. Upon the question of probable cause, the judge properly left to the jury the facts involved in that question.

9. In this trial, so much of the former record as proved the arrest and discharge was proper evidence; the remainder was irrelevant.

10. That the party who procured the arrest, acted under the advice of counsel, is a fact to be considered by the jury, but does not, of itself, shield him from all responsibility.

11. The judge charged the jury that if they, as reasonable men, under the circumstances proved, would have acted as the defendants did, then they might conclude the defendants had reasonable cause for their action, but, in view of the testimony, if the jury would not have acted as the defendants did, then the jury might conclude that the defendants did not have probable cause. This was erroneous, in that it did not confine the jury to the facts and circumstances which surrounded the defendants at the time they acted in procuring the arrest. And for this error a new trial was granted.

Before THOMSON, J., Barnwell, September, 1880.

Action by Thomas F. Hogg against B. G. Pinckney and R. Q. Pinckney, commenced August 5th, 1879, in Barnwell county, then transferred on defendants' demand to Charleston county, where they resided, and afterwards changed to Barnwell, by order of the judge, on account of the convenience of witnesses.

The facts are these: In February, 1877, the defendants here were doing business together in Charleston, under the firm name of Pinckney Brothers, and were engaged in selling a certain brand of fertilizers. Dr. Hopson Pinckney, as their agent, sold, at that time, to the defendant, five tons of this fertilizer, to be paid for in the next November, by the shipment of five bales of cotton. The cotton not being shipped, or other payment made for this fertilizer, the said Pinckney Brothers, in January, 1879, commenced an action against T. F. Hogg, in Barnwell, and, at the same time, made affidavit to the following effect: That these five tons of fertilizer were shipped upon the faith of Hogg's promise to give a lien upon his entire crop to secure the payment of their account for the fertilizers and cash advanced for freight, & c., without which promise the goods would not have been furnished, and that, although Hogg had been repeatedly requested to give the promised lien, he had failed and refused to do so, and had never paid for the goods; and that the defendant was guilty of fraud in contracting the debt for which this action is brought. Upon this affidavit, the clerk of court issued a warrant for arrest and bail. Hogg was arrested at his home, in the county, by the sheriff. Hogg offered a surety, to whom the sheriff, with his prisoner, went, but this surety declined to justify. Hogg then mentioned other names, whom the sheriff refused to accept, and finally offered a person seven miles distant, to whose house they rode together, and, upon his signature being affixed to the bond, Hogg was released. Soon afterwards, in Barnwell, C. H., the defendant, Hogg, was told by the sheriff that he had learned that two sureties were necessary to a bail bond, and that Hogg must procure another surety, which Hogg then and there did. Hogg afterwards moved before Judge Hudson for an order vacating the order for bail. At the hearing of this motion, affidavit of Dr. Hopson Pinckney was read, which stated that the contract was as set forth in the affidavit for arrest; that five bales of middling cotton of 500 pounds weight each were to be delivered by Hogg at the nearest depot, in the fall of 1877, and that this contract was to be secured by a lien on his entire crop so soon as Hogg received the fertilizers; that a lien was sent to one Garvin for Hogg to execute, but that he had not executed it. Plaintiff's affidavit declared that Hogg had not executed the lien, shipped the cotton or made any payment on the account.

Affidavits submitted by Hogg, and in his behalf, were to the effect that the cotton to be shipped was not middling, but such as was made; that a lien was to be given on only five bales of cotton, and not on the entire crop; that the lien sent to Garvin was a lien upon the entire crop, and Garvin, knowing that the contract was for a limited lien, and other parties who had made similar contracts, having, on that account, refused to sign similar liens, had never presented this lien to Hogg nor told him of it. There was also a conflict in the affidavits upon another point: Dr. Pinckney swore that in the fall, Hogg said he was pushed for money to complete a gin-house which he was then building, and Pinckney told him to finish his gin-house and then pay the debt. Hogg and others swore that Dr. Pinckney was told by Hogg that a debt had unexpectedly been pressed, which, if not paid, would cause him to lose his land, and that he could not then pay both debts, whereupon Pinckney told Hogg to pay for his land and “we will wait on you.”

Upon these affidavits, Judge Hudson granted the order prayed for, and set aside the order of arrest, upon the ground that the only fraud alleged was in the failure to give the lien, whereas, the lien, if given according to the contract, would have been worthless as a security, as the goods were delivered before the time fixed for the lien to be signed; and, moreover, there was no testimony to show that the lien was ever presented to Hogg, and there was testimony to the contrary.

Thereupon this action was commenced, and the testimony at the trial was substantially as above stated.

The presiding judge charged the jury that to entitle the plaintiff to recover, malice on the part of the defendants and the want of probable cause for the arrest must both concur, but that it was not necessary to prove express malice and they could infer it from the want of probable cause. That the material points for them to consider was whether the plaintiff, at the time he agreed to give the lien to defendants, had no intention of giving the same, and that if they found he had no such intention it would go far to show probable cause for the arrest; but on the other hand, if they found that at the time he did intend to give it, it would go far to show want of probable cause. That this action was for damages, and the jury were not limited to the proof of special or actual damage shown in the case, which was not necessary for a recovery. That the jury could find as damages to the sum claimed in the complaint. They were warned, however, if they found for the plaintiff not to permit their feelings to carry them away, but, taking all the facts into consideration, to give a just compensation for the injury sustained by the plaintiff, of which they were the judges. That evidence was intended to assail or substantiate the statement contained in the affidavit and complaint. If the evidence disproves these statements, then, of course, the probable cause is overthrown. If, on the contrary, the evidence supports these statements, or pointedly increases their strength, the probable cause is sustained. That if the jury, as reasonable men, under the circumstances proved, would have acted as the defendants did, then the jury might conclude the defendants had probable cause for their action, but in view of the testimony, if the jury would not have acted as the defendants, then the jury might conclude the defendants did not have probable cause.

Defendants requested the court to charge, that the plaintiff could not recover unless he showed that the defendants acted in malice. The court said, I charge you that, gentlemen; but by malice, I do not mean an evil intent, but a gross indifference to the rights of others.

The court also failed to charge the jury as to the effect of the advice of counsel, saying not a word to them about it, although it was urged in the argument. But there was no special request to charge on this point.

The jury found for the plaintiff $1,000.

Defendants moved for a new trial on the minutes upon all the grounds contained in the notice of appeal that relate to the motion for a new trial before the Supreme Court, and his Honor overruled the motion.

The defendants appealed upon the several grounds considered in the opinion of this court; but it will not be amiss to give the full text of the last five exceptions to the...