Hunter v. Beckley Newspapers Corp., 9829
| Decision Date | 29 November 1946 |
| Docket Number | No. 9829,9829 |
| Court | West Virginia Supreme Court |
| Parties | Van Hunter v. Beckley Newspapers Corporation |
Van Hunter
v.
Beckley Newspapers Corporation
Supreme Court of Appeals of West Virginia.
Submitted September 24, 1946.
Decided November 19, 1946.
1. Venue-
Under Code, 56-9-1, a circuit court, or other court coming within the provisions of said section, should, in the exercise of its discretion to remove a civil suit, action or proceeding to the circuit court of another county in this State, where timely motion therefor is made, treat as good cause for such removal, in any case where a jury will be required to pass upon the matters in difference between the parties, the fact that the clerk of the court in which such suit, action or proceeding was instituted, is a party litigant, either as plaintiff or defendant.
2. Malicious Prosecution
To sustain an action of trespass on the case for malicious prosecution of either a civil suit, action or proceeding, or a criminal charge, there must be a showing, from a preponderance of the evidence, of both malice and want of probable cause in the prosecution complained of. Absence of a showing of either is fatal to the plaintiff's claim for recovery.
3. Malicious Prosecution
Malice may be inferred from the prosecution of a civil suit, action or proceeding, or a criminal charge, where want of probable cause for such prosecution is shown by a preponderance of the evidence.
4. Malicious Prosecution-
Want of probable cause is not established by, and may not be inferred from, a showing of malice in the prosecution of a civil suit, action or proceeding, or a criminal charge.
5. Malicious Prosecution
A suit, action or proceeding, prosecuted in good faith, and on advice of reputable counsel obtained after a fair and ac-
[129 W.Va. 303]
curate disclosure to counsel of the facts on which advice is sought, may not serve as the basis of an action for malicious prosecution.
6. Malicious Prosecution
A civil suit, action or proceeding, prosecuted in good faith, against a public official, having public records in his charge, for the sole purpose of testing the right of access to such records, can not serve as the basis for an action of malicious prosecution.
7. Malicious Prosecution
A public official in charge of public records, is not, in law, damaged in his person, property or reputation, by the prosecution of a suit,-action or proceeding, by a person legally entitled to reasonable access to such records, where the sole purpose is to test the extent of such rights; and may not, in his private capacity, recover damages on account thereof, regardless of the result of such litigation.
Error to Circuit Court, Raleigh County.
Action of trespass on the case for malicious prosecution by Van Hunter against Beckley Newspapers Corporation. Verdict and judgment for plaintiff, and defendant brings error.
Judgment reversed; verdict set aside;
new trial awarded.
H. E. Stansbury, D. D. Ashworth and J. W. Maxwell, for plaintiff in error.
Clay S. Crouse, L. L. Scherer and W. A. Thornhill, Jr., for defendant in error.
Fox, Judge:
This is an action of trespass on the case, instituted in the Circuit Court of Raleigh County by Van Hunter against Beckley Newspapers Corporation, for its alleged malicious prosecution of a petition seeking a writ of mandamus against Hunter, as Clerk of the Circuit Court of Raleigh County, filed in this Court on the 16th day of March, 1945, growing out of the alleged refusal of Hunter to permit the newspapers corporation to have access to
[129 W.Va. 304]
certain papers in his office, alleged to be public records, in which proceeding the relief prayed for was denied, and the same dismissed.
The plaintiff below, Van Hunter, is Clerk of the Circuit Court of Raleigh County, a position which he has occupied for approximately eighteen years. Beckley Newspapers Corporation owns and publishes two daily newspapers in the City of Beckley. Early in 1945, a dispute arose between the circuit clerk and the newspapers corporation over privileges which the newspapers corporation claimed in relation to access to certain alleged public records preliminary to publishing reports on the same. The dispute reached the point where legal action was resorted to on the part of the newspapers corporation, in the form of proceedings in mandamus as aforesaid, in which it sought the relief mentioned above. There was a full hearing on the matter, and on June 12, 1945, the relief sought was denied. Beckley Newspapers Corporation v. Hunter, Clerk, 127 W. Va. 738, 34 S. E. 2d 468.
This suit was instituted in June, 1945, and the declaration filed at July Rules, in which the defendant is charged with having filed a petition in mandamus which "falsely, unlawfully, maliciously and without any reasonable or probable cause whatever, charged that said plaintiff as Clerk of the Circuit and Criminal Courts of Raleigh County, West Virginia, had failed to perform his legal duties" in certain particulars therein set out. On September 10, 1945, the defendant filed his demurrer in writing to plaintiff's declaration, assigning specific grounds, which being considered by the court was overruled. There was pending at that time a notice that a motion would be made to remove the action from the Circuit Court of Raleigh County to another circuit court of the State, under the provisions of Code, 58-9-1. The decision on that motion was continued to a later date, and, on November 28, 1945, along with other matters, was considered by the court. The order entered on that day recited the appearance of the parties by their
[129 W.Va. 305]
attorneys; that the matter of the motion for a removal of the case had been heard on October 17, 1945, upon the petition filed therefor, and the plaintiff's demurrer in writing thereto; and that the said motion was overruled on October 25, 1945. Possibly to secure complete regularity, the petition for such removal, together with the demurrer thereto, was again presented to the court on November 28, and the motion to transfer was again overruled. The defendant then filed its plea of not guilty, whereupon the court proceeded to impanel a jury for the trial of the action, and after their voir dire examination and before the jury was sworn to try the case, the defendant moved the court to quash the panel, discharge the same from the trial of the case, and alleged various matters in support of such motion, which motion was overruled. A trial was then had resulting, on December 1, 1945, in a verdict for plaintiff in the sum of three thousand dollars. A motion to set aside the verdict was promptly made, supplemented by the assignment of grounds therefor on December 7, 1945, was on that day overruled, and judgment entered for the plaintiff on the verdict aforesaid. The defendant at all times protected itself against adverse rulings by exceptions taken at the time the rulings were made.
The first question to be considered is whether the trial court erred in refusing to remove the action to another circuit court of the State. The petition filed in support of this motion represents, in substance, that plaintiff, Van Hunter, was then Clerk of the Circuit and Criminal Courts of Raleigh County, first elected in 1923, and reelected in the years 1932, 1938, and 1944; that he personally attends the sessions of the court in the discharge of his duty as clerk; and is astute and skilled in the art of freely mingling and associating with the public, especially with jurors, is attentive to their wants and comforts, accommodating, and from his opportunities has made many close and intimate personal friends, many of whom would be drawn for jury service; that he keeps the roll of the jury during each term of court and memoranda of the time or days of service
[129 W.Va. 306]
of each juror; that he is gracious in his relationship with the public; and is a man of pleasing personality and magnetism. Furthermore, that as clerk of the said courts he has charge of the jury lists; convenes the jury commissioners; and keeps the record of the drawing of jurors; assists commissioners in drawing jurors, has charge of the records in relation to juries, both before and after the trial of cases; that because of his intimate relationship with jurors and the jury system in the Circuit Court of Raleigh County is in a position to exercise influence over the trial of cases, especially cases in which he might be a party litigant; and that his position as such clerk operated to his advantage in any such litigation, and that a fair and impartial trial of the case now at bar could not be had in the Circuit Court of Raleigh County. The motion to quash the panel was made on two grounds: (1) That plaintiff had been...
To continue reading
Request your trial