Jones v. Donald Co.

• Decision Date: 19 January 1925
• Docket Number: 24411
• Citation: 102 So. 540,137 Miss. 602
• Court: Mississippi Supreme Court
• Parties: JONES v. DONALD CO. et al. [*]

102 So. 540

137 Miss. 602

JONES v. DONALD CO. et al. ^[*]

No. 24411

Supreme Court of Mississippi

January 19, 1925

Division A

Suggestion of Error overruled Mar. 2, 1925.

APPEAL from circuit court of Clarke county, HON. C. C. MILLER Judge.

Action by J. C. Jones against the Donald Company and others. Judgment for defendants, and plaintiff appeals. Affirmed.

Affirmed.

W. M. Everett, for appellant.

The whole gist of the case may be discussed in one head or subject, which hinges around the sole proposition of whether the trial court was justified and upheld by the weight of authorities in directing a verdict for the defendants, for in its ultimate analysis this is the gravaman of the suit. Section 30 of our Constitution says that: "There shall be no imprisonment for debt," yet we are here confronted with the facts disclosed in this record that, the appellees were the sole instigators of a criminal prosecution against the appellant, for no other reason than, he was due them, a debt on open account. This to us seems self evident, that after the payment of the civil debt was affected, the criminal charges had served their purpose, and then, is it not the law that every wrong has a remedy and every damage done be redressed by the payment of damages where there is any shown to have been suffered?

We contend that the record taken as a whole shows conclusively that the case should have been submitted to the jury in view of the defenses set up by the defendants in that they acted upon the advice of counsel. The rule laid down by all the courts is: "That where the advice of counsel is sought and obtained, the parties seeking the advice must continue the counseling of the advice so sought of an attorney." The appellees cannot be heard to question the sufficiency of the declaration, that is as to whether this is a suit for malicious prosecution, or a suit for false imprisonment, as argued before the lower court. For the declaration went unquestioned, and at no time could ever have been attacked only by demurrer. Cairns v. Moore, 69 So. 579 (Ala.).

All the law required of the plaintiff was to see that the prosecution terminated in his favor. Even where it was conclusively shown that the defendant obtained the advice of counsel and followed the advice and was protected thereby, this could only amount to a defense, as to the punitive damages. They cannot maintain this as a defense against actual damage. This question at least should have been submitted to the jury.

Bozeman & Cameron, for appellees.

The essential ingredients of an action of malicious prosecution are these: (1) Institution of original proceedings by defendant. (2) Termination of proceeding in plaintiff's favor. (3) Malice in institution of proceeding. (4) Want of probable cause for proceeding. 18 R. C. L. 9, 10. It is, of course, fundamental that "to maintain an action for malicious prosecution the plaintiff must show that the defendant therein was responsible for the institution or continuance of the original proceedings complained of." 18 R. C. L. 17.

As to the defendant, Ben Donald, it is admitted that he made the affidavit and that he must individually carry whatever consequences this act entails. That his action amounts to an "institution of original proceeding" is by no means certain, in view of the fact that he was acting for the county attorney. 18 R. C. L. 18. As to the defendant, The Donald Company, there is no proof whatever that the proceeding was instituted by it.

Termination of proceeding in plaintiff's favor. "It is well recognized that before one can maintain an action for malicious prosecution against him, he must allege and prove a termination of the original proceeding in his favor, whether such proceeding was a wrongful civil action or criminal prosecution." 18 R. C. L. 21-2. It is further well settled that where the prosecution terminated as the result of an agreement or settlement, there is no such successful termination as will support an action for malicious prosecution. 18 R. C. L. 25-6.

Malice in institution of proceedings. "The authorities are unanimous in holding that it is essential to a recovery in the action of malicious prosecution that the action, or prosecution complained of must have been maliciously instituted." 18 R. C. L. 28. Certainly there is no proof of malice in this case.

Want of probable cause. Here is the rock on which plaintiff's bark must go to pieces. He must show a concurrence of both malice and want of probable cause. Greenwade v. Mills, 31 Miss. 464; 18 R. C. L. 33-5, 51. We submit that there is no proof in the record tending to show a want of probable cause. On the contrary, the evidence shows, without dispute, that Ben Donald acted with the utmost good faith. He got his information from two reputable persons, whose word he did not and could not doubt. That was all the information he had. 18 R. C. L. 41-3. It is well established that if a man, in instituting a prosecution, acts upon advice given him by a reputable attorney, he does so with impunity. No man can be held for malicious prosecution when he consulted a lawyer and proceeded in accordance with his advice. 18 R. C. L. 45; Vicksburg S. & P. Ry. Co. v. Porterfield, 103 Miss. 585, 60 So. 652.

Peremptory instruction proper. Gwaltney v. State, 111 Miss. 507, 71 So. 805. We submit that this case should be affirmed, referring the court to the following authorities. Note, 12 A. L. R. 1230; Whitfield v. Westbrook, 40 Miss. 311; Threefoot v. Nuckols, 68 Miss. 116, 8 So. 335; McNulty v. Walker, 64 Miss. 198, 8 So. 55; Planters' Ins. Co. v. Williams, 60 Miss. 916; Note, 18 L. R. A. (N. S.) 49; 26 Cyc. 31; Note, 1915-A L. R. A. 601; Note, 2 L. R. A. (N. S.) 945-7; Note 26 L. R. A. 1404; Note, 18 L. R. A. 11; Note, 24 L. R. A. 262.

W. M. Everett, in reply for appellant.

It matters not if the defendants did seek the advice of counsel, if they were still actuated by malice, if they still believe after the counsel has actually advised prosecution, that the prosecution will fail, and is actuated by angry feelings, they cannot excuse themselves. Manning v. Finn, 23 Neb. 511; Hobb v. Pincbury, 16 S.C. 387; Jacob v. Crum, 62 Tex. 411; Ramsey v. Arrott, 64 Tex. 322; Glascow v. Owen, 69 Tex. 167; Fox v. Davis, 55 Ga. 298; Terney v. Williams, 32 Ark. 116; Gulf, etc., Ry. Co. v. James (Tex), 10 S.W. 744; Brewer v. Jacobs, 22 F. 217; Davenport v. Lynch, 6 Jones Law, N-545; Vinal v. Can, 18 W.Va. 1.

The declaration is based on two ideas, or theories. Both for malicious prosecution, and for false pretenses. The declaration in the first instance possibly could have been demurred to before the general issue plea was filed, after this however, the question became one of fact, and as long as the facts were in controversy the court at no time ever had the right to sustain the motion of defendants for peremptory instruction. 11 R. C. L. 332-3.

Another very serious question presented by this record, is as to whether or not, the plaintiff can maintain this suit, after agreeing to and paying the cost of the criminal prosecution. We maintain that he can, because the evidence shows that...