Hotel Supply Co. v. Reid

• Decision Date: 12 November 1918
• Docket Number: 6 Div. 400
• Citation: 80 So. 137,16 Ala.App. 563
• Parties: HOTEL SUPPLY CO. v. REID.
• Court: Alabama Court of Appeals

80 So. 137

16 Ala.App. 563

HOTEL SUPPLY CO. v. REID.

6 Div. 400

Court of Appeals of Alabama

November 12, 1918

Appeal from Circuit Court, Jefferson County; C.W. Ferguson, Judge.

Action by John Reid against the Hotel Supply Company for damages for malicious prosecution and false imprisonment. Judgment for plaintiff, and defendant appeals. Affirmed.

The complaint charges that H.F. Burton, acting within the line and scope of his employment or agency, maliciously and without probable cause therefor, caused plaintiff to be arrested under a warrant issued by H.P. Abernathy, judge of the municipal court of Birmingham, on May 23, 1916, on the charge of a worthless check, which charge had been judicially investigated before this action, and said prosecution ended and plaintiff discharged. It appeared that on the trial of the case the clerk of the municipal court of Birmingham was present with the docket of said court, and the entry therein in the case of the State v. John Reid showed the following judgment entry: "June 2, 1916. Case dismissed for want of jurisdiction, and defendant discharged." Thereupon the witness was handed a copy of the warrant and affidavit. This was objected to by defendant on the ground that it charged no offense and was irrelevant.

The following charges were refused to defendant:

Assignment 4. If you are reasonably satisfied from all the evidence that plaintiff gave the check offered in evidence in payment of meat, part of which was received by him at the time, and then had no funds, or not sufficient funds in bank to meet the check, and knew that fact, and had no intention at that time of depositing funds to meet the check, and that he gave that check with intent to injure or defraud, you cannot find for plaintiff.

Assignment 5. I charge you, gentlemen, that the law does not imply malice from the fact that there was no probable cause for believing the person arrested to be guilty of the offense charged against him.

J.L Drennen, of Birmingham, for appellant.

Hugh H Ellis, of Birmingham, for appellee.

BROWN P.J.

As to whether a prosecution before a court or officer without jurisdiction of the offense will support an action on the case for malicious prosecution, there is considerable conflict of authority. 18 R.C.L., p. 20, § 10. There is a like conflict as to whether an indictment, complaint, or affidavit that charges no offense against the law, and upon which process issues for the seizure of the person, can be made the basis of such action. The questions stated are categorically the same, for it is manifest that a complaint or indictment that charges no offense is impotent to confer jurisdiction. The conflict arises, not on a question of substantive law fixing or denying liability, but as to a question of procedure--whether the plaintiff should bring case or trespass.

Where it is shown that a prosecution was prompted by malice and was without probable cause, and a "colorable cause" or a "colorable invocation of jurisdiction" is shown--and "by a colorable cause or colorable invocation of jurisdiction," as applied to cases like the instant one, we understand and mean that some person apparently qualified to do so has appeared before the justice and made his complaint under oath and in writing, stating at least some fact or facts which enter into and may under some conditions or in co-operation with some other unstated fact or facts constitute a criminal offense, or stating some fact or facts which bear some general similitude to a fact or facts designated by law as constituting an offense" ( Broom v. Douglass, 175 Ala. 268, 57 So. 860, 44 L.R.A.[ N.S.] 164, Ann.Cas.1914C, 1155; Blancett v. Wimberley, 78 So. 318; Canter v. Harris, 81 South. ---, reason and the weight of authority sustain the rule that an action on the case for malicious prosecution will lie (Rutherford v. Dyer, 146 Ala. 665, 40 So. 974; Forrest v. Collier, 20 Ala. 175, 56 Am.Dec. 190; Thompson v. Richardson, 96 Ala. 488, 11 So. 728; Ward v. Sutor, 70 Tex. 343, 8 S.W. 51, 8 Am.St.Rep. 606; Sutor v. Wood, second appeal, 76 Tex. 403, 13 S.W. 321; Goslin v. Wilcock, 2 Wils. 305; Stone v. Stevens, 12 Conn. 219, 30 Am.Dec. 611; Antcliff v. June, 81 Mich. 477, 45 N.W. 1019, 10 L.R.A. 621, 21 Am.St.Rep. 533; Stubbs v. Mulholland, 168 Mo. 47, 67 S.W. 650; Boon v. Maul, 3 N.J.Law, 862; Newfield v. Copperman, 47 How.Prac. [ N.Y.] 87; Hudson v. Cook, 2 Shower, 333; Ailstock v. Moore Lime Co., 104 Va. 565, 52 S.E. 213, 2 L.R.A.[ N.S.] 1100, 113 Am.St.Rep. 1060, 7 Ann.Cas. 545; Calhoun v. Bell, 136 La. 149, 66 So. 761, Ann.Cas.1916D, 1165; Morris v. Scott, 21 Wend. [ [N.Y.] 281, 34 Am.Dec. 236; Shaul v. Brown, 28 Iowa, 37, 4 Am.Rep. 151; Williams v. Vanmeter, 8 Mo. 339, 41 Am.Dec. 644; Dennis v. Ryan, 65 N.Y. 385, 22 Am.Rep. 635; McIntosh v. Wales, 21 Wyo. 397, 134 P. 274, Ann.Cas.1916C, 273).

In one of the leading cases it was said:

"In a technical sense, no crime was charged; but one was sufficiently stated to entitle the proceedings to be called a prosecution. It was deemed sufficient by the complainant and the magistrate, and would have seemed to be so, perhaps, to most men. It was hurtful to the plaintiff in the extreme. It was none the less a prosecution because defended on the law and not the facts. The defendant is estopped to deny that it was a legal prosecution, excepting so far as its illegality may affect the question of damages. The reason of the thing is so strong we do not feel it is necessary to

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