Jennings v. Clearwater Mfg. Co.

• Decision Date: 19 February 1934
• Docket Number: 13785.
• Citation: 172 S.E. 870,171 S.C. 498
• Parties: JENNINGS v. CLEARWATER MFG. CO. et al.
• Court: South Carolina Supreme Court

172 S.E. 870

171 S.C. 498

JENNINGS v. CLEARWATER MFG. CO. et al.

No. 13785.

Supreme Court of South Carolina

February 19, 1934

Appeal from Common Pleas Circuit Court of Aiken County; Philip H Stoll, Judge.

Action by V. H. Jennings against the Clearwater Manufacturing Company and another. Judgment for plaintiff, and defendants appeal.

Affirmed.

Hendersons & Salley and John E. Stansfield, all of Aiken, for appellants.

Williams & Busbee, of Aiken, for respondent.

BLEASE Chief Justice.

This action for damages, for an alleged malicious prosecution tried in the court of common pleas of Aiken county, resulted in a verdict and judgment for the plaintiff, and the defendants have appealed therefrom.

Since the main issue for our determination relates to the refusal of the trial judge to direct a verdict in favor of the defendants, it is necessary to refer to the evidence, and, in our review thereof, we must take the same, and the inferences therefrom, favorable to the plaintiff.

The defendant company operated a bleachery at Clearwater, and the other defendant, Vaughn, was its office manager and paymaster. Jennings, the plaintiff, an employee of the defendant company, worked on the night shift on one of the calendars. Another employee, Widener, worked on the same calendar with Jennings. George Savage, employed in the same department with Jennings, worked on a soaper machine, some fifty yards from where the plaintiff worked. Plaintiff resided at Belvedere, Widener at Langley, and Savage in Augusta, Ga. Plaintiff did not know the residences of either Widener or Savage, and had no connection with them other than in their employment.

On the night of December 2, 1931, while at his employment, the actions of Savage aroused the suspicion of Jennings that Savage might be stealing cloth, and Jennings reported that suspicion to Anderson, who appears to have had some supervisory position with the mill. Ferguson, night superintendent at the bleachery, saw Savage making trips from the mill to his automobile during the night, and, upon making an investigation, he found some stolen cloth in Savage's car, Ferguson sent for Beard, the mill constable, who watched the automobile and Savage until Savage came to his car at about 6.30 o'clock in the morning to leave for his home in Augusta. The constable arrested Savage, who denied any knowledge of the theft. Up to this time, no suspicion had attached to Jennings. After Savage had been put in jail, he sent a message to Vaughn, the office manager, and the latter with Beard, the constable, visited Savage. Savage made to Vaughn and Beard a statement to the effect that he did not steal the cloth, but that Jennings and Widener had stolen it and had given it to him; that he was to take it to Augusta and sell it, and, from the proceeds of two or three bolts, he was to get some money to pay on his rent and grocery account. Without any further investigation, except to talk over the situation with Beard and with Foley, the mill manager, Vaughn swore out a warrant for the arrest of both Jennings and Widener, charging them with larceny. Jennings was arrested on December 3, 1931, and placed in jail, where he remained until December 6th, being released without bond at the request of Vaughn. Widener was also released from jail. After Jennings had been released, he went to the mill and talked with Vaughn, and told him that he had had nothing to do with the stealing of the cloth, that he had a family to support, and would like to be put back to work. Vaughn, after talking with the manager, Foley, told Jennings that nothing could be done about putting him back to work until after the preliminary hearing.

The preliminary examination was held before the magistrate on December 15th, and the testimony of the plaintiff was that Vaughn told him that the prosecution would withdraw the warrant against him and release him, if he would testify, and that in reply he told Vaughn that he would tell all that he knew about it. Magistrate Cullum, who held the examination testified to his impression that the prosecution did not have enough evidence to go to trial against Jennings, and that he would probably be used as a witness for the state. The record in the magistrate's court recited, among other things: "At the request of the prosecution and witnesses for the same, the charges as preferred against the defendants, Widener and Jennings are dismissed." A formal order of dismissal, admittedly signed by the magistrate a few days after the preliminary hearing, was stated by him to have been prepared from data he had furnished, and that it correctly represented what had occurred at the preliminary. This order sets out that: "Before going into the hearing, Mr. Salley (an attorney representing the prosecution) talked with Mr. Vaughn and then announced that they did not have the evidence to bind over the defendants, Widener and Jennings, and would therefore ask that the case be dismissed as to said two defendants, and would go into the hearing and proceed against the defendant, Savage."

On the trial of the case against Savage, in the Court of general sessions, he entered a plea of guilty to the crime of receiving stolen goods, and was sentenced to serve a term in the state penitentiary.

Both in the lower court and in this court the defendants have urged that the plaintiff failed to meet the burden of proof imposed on him to prove the elements of (1) malice, (2) want of probable cause, and (3) the termination of the prosecution favorable to him, upon which his right of recovery rested.

In the consideration of actions seeking to recover damages for malicious prosecutions, it is to be remembered that, while individuals are to be protected against rash and baseless prosecutions, the public interests demand that courts shall not frown upon honest efforts made in attempts to bring the guilty to justice, and the juries, who try actions for malicious prosecutions, should ever keep these principles in mind. In every case of this character there necessarily arises a duty, sometimes a most difficult one, which either a jury or the court has to perform; namely, to make an application of the mentioned rule to the facts proven in the case.

Under the practice in this state, neither this court nor a trial court may rightly assume the province of a jury in passing on the proof, for our Constitution mandatorily prescribes that a trial judge "shall not charge juries in respect to matters of fact, but shall declare the law." Section 26, article 5.

Mr. Chief Justice Simpson said in the case of Hogg v. Pinckney, 16 S.C. 387: "The term 'malice,' as applied to torts, does not necessarily mean that which must proceed from a spiteful, malignant or revengeful disposition, but a conduct injurious to another, though proceeding from an ill-regulated mind not sufficiently cautious before it occasions an injury to another. 2 Bouv. Dic. 98."

And further, in the same case, he said: Malice "is implied where it shows a disregard of the consequences of the injurious act, without reference to any special injury which he may inflict on another," and, similarly, that malice was implied "in doing some illegal act for one's own gratification or purposes, without regard to the rights of others or the injury he may inflict on another."

In an action for damages for malicious prosecution, malice may be inferred from want of probable cause; the reason for the rule, as pointed out in Baker v. Hornick, 57 S.C. 213, 35 S.E. 524, 529, being "where a person instituted a prosecution against another without probable cause, it is difficult to conceive of any other motive but a malicious one for bringing the prosecution."

To the same effect is the case of Wheeler v. Nesbitt, 65 U.S. (24 How.) 544, 551, 16 L.Ed. 765, where Mr. Justice Clifford said: "Want of probable cause is evidence of malice for the consideration of the jury."

It is true the implication of malice may be rebutted by circumstances (Graham v. Bell, 1 Nott & McCord Law (10 S.C. L.) 278, 9 Am. Dec. 687; Campbell v. O'Bryan, 9 Rich. Law (43 S.C. L.) 204; Baker v. Hornick, supra; Smith v. Hughes, 104 S.C. 149, 88 S.E. 369). And, in a few instances, based on unusual circumstances, it was held that the facts rebutting the inference of malice were such as to authorize the trial judge to take the case away from the jury and directing a verdict or of ordering a nonsuit. Graham v. Bell, supra; Campbell v. O'Bryan, supra; and Smith v. Hughes, supra.

But, on the other hand, it is equally true that the question whether the circumstances relied on to rebut the implication of malice are to be regarded as being conclusive is, ordinarily, an issue of fact which is to be submitted to the jury for their determination. In the case of China v. Railway, 107 S.C. 179, 92 S.E. 335, where testimony of circumstances was offered to rebut the inference of malice, it was pointed out that such circumstances were not conclusive of the good faith of the prosecutor, but were merely circumstances for the consideration and interpretation of the jury.

Similarly it is essentially a matter for the jury, under proper instructions of the court, to pass on the sufficiency of the facts and circumstances relied on by the plaintiff to show lack of probable cause for the prosecution of the criminal action. Speaking to this very point, Mr. Justice McIver said: "*** We think the true rule is, that after the jury have been instructed as to what constitutes probable cause, as matter of law, it is for them to say, from a review of all the facts and circumstances proved to have been present to the mind of the prosecutor at the time he commenced the prosecution, or to the plaintiff at...