Jordan v. Wilson, 6 Div. 897

• Decision Date: 10 November 1955
• Docket Number: 6 Div. 897
• Citation: 83 So.2d 340,263 Ala. 625
• Parties: Richard JORDAN v. Mrs. E. E. WILSON. Jack JORDAN v. Mrs. E. E. WILSON. , 898.
• Court: Alabama Supreme Court

Page 340

83 So.2d 340

263 Ala. 625

Richard JORDAN v. Mrs. E. E. WILSON.

Jack JORDAN v. Mrs. E. E. WILSON.

6 Div. 897, 898.

Supreme Court of Alabama.

Nov. 10, 1955.

Kingman C. Shelburne, Birmingham, for appellants.

Huey, Stone & Patton and Bumgardner & Hawkins, Bessemer, for appellee.

STAKELY, Justice.

Richard Jordan and Jack Jordan each brought suit in the lower court against Mrs. E. E. Wilson for alleged malicious prosecution. The suits were consolidated for trial in the lower court and the appeals here are on one record from the judgments in the aforesaid cases which were in favor of Mrs. E. E. Wilson (appellee).

The complaints in each case are identical and claim damages of the defendant 'for maliciously and without probable cause therefor, causing the plaintiff to be arrested under a warrant issued by Fred Ross, City Recorder, on the 1st day of April, 1948, on a charge of disorderly conduct, which charge before the commencement of this action has been judicially investigated and said prosecution ended and the plaintiff discharged.'

Richard Jordan and Jack Jordan (appellants) were both tried and convicted in the recorder's court of the City of Bessemer on a charge of disorderly conduct on warrants sworn out by Mrs. E. E. Wilson. The fine in each case was $5 and costs. Both Richard Jordan and Jack Jordan took an appeal from the judgment of conviction in the recorder's court to the Circuit Court of Jefferson County, Bessemer Division. The trial in the Circuit Court of Jefferson County, Bessemer Division, resulted in the acquittal of each of the defendants. The two suits here involved were then filed in the Circuit Court of Jefferson County, Bessemer Division, for malicious prosecution.

As we understand the situation, by stipulation between the parties the record in the recorder's court, showing the conviction therein and the record in the Circuit Court of Jefferson County, Bessemer Division, showing acquittal of the defendants, were introduced in evidence by agreement as being true and correct. The complaint in each case which was filed by the City of Bessemer when the appeal was taken to the Circuit Court of Jefferson County, Bessemer Division, alleged the violation of § 41, Chapter 16 of the Bessemer Code, in this 'That he did disturb the peace of others by violent, offensive, or boisterous conduct or carriage, or by loud or unusual noises, or by profane, obscene or offensive language, calculated to provoke a breach of the peace', it being alleged that § 41, Chapter 16, of the Bessemer City Code reads as follows:

'Sec. 41 Disorderly Conduct. It shall be unlawful for any person to disturb the peace of others by violent, offensive or boisterous conduct or carriage, or by loud or unusual noises, or by profane, obscene or offensive language, calculated to provoke a breach of the peace, or by being drunk or in a state of intoxication in a private place to the annoyance of others.'

It will be observed from the aforesaid statement that each of the appellants was convicted in the recorder's court but was acquitted in the circuit court, when the cases were tried on appeal from the judgment of conviction in the recorder's court. In the case of Republic Steel Corporation v. Whitfield, 260 Ala. 333, 70 So.2d 424, 426, in dealing with the question of probable cause in a suit for malicious prosecution, a rule was laid down, which is applicable here:

'* * * That is, that the judgment of conviction, though later vacated and accused discharged, is prima facie evidence of the existence of probable cause for instituting the prosecution 'which may be rebutted by any competent evidence which clearly overcomes the presumption arising from the fact of defendant's conviction in the first instance.''

When the present suits for malicious prosecution were tried in the circuit court the court gave the affirmative charge for the defendant in each case and so in reviewing the action of the court in giving the affirmative charge, which is assigned as error in each case, we must determine whether there was competent evidence sufficient to overcome clearly the prima facie presumption of probable cause created by proof of the conviction in the recorder's court.

While we cannot set out all the evidence in all its detail, we shall undertake to state the substance of the evidence so that the question now before us will be understandable. Apart from the record proof to which we have alluded, the only evidence in the case is the testimony of Mrs. Lucy Jordan, the mother of Richard Jordan and Jack Jordan, the testimony of Richard Jordan and Jack Jordan, the testimony of Tom Randle, the father-in-law of Jack Jordan and the testimony of witnesses with reference to attorneys' fees. The testimony of the witnesses with reference to attorneys' fees is not material to the matter under consideration here.

On or about March 30, 1948, Richard Jordan learned that E. E. Wilson, a practicing attorney in the City of Bessemer, had filed suit with a garnishment for Dr. W. N. Payne on an account against his mother, Mrs. Lucy Jordan, in the Bessemer Civil and Misdemeanor Court. Judge F. R. Mathews, now the Circuit Judge of the Jefferson Circuit Court, Bessemer Division, presided at that time over the Bessemer Civil and Misdemeanor Court. Richard Jordan went to see Judge Mathews at the court house in Bessemer in regard to the suit against his mother with the result that Richard Jordan was informed that Dr. Payne had reduced the claim to $25. Judge Mathews on account of his friendship for Mrs. Jordan made it known that if it was not convenient for the claim to be paid, he would give a check for the amount due which could be repaid at a later time. After this conversation with Judge Mathews, Richard Jordan went to Mr. Wilson's office, which is located on the Fourth Floor of the Realty Building in Bessemer, Alabama.

The office consists of a reception room in the front and a private office in the rear. When he arrived he saw Mrs. E. E. Wilson, the defendant in the case, in the reception room. She is the wife of E. E. Wilson and is his secretary. Richard Jordan did not know Mrs. Wilson and was not acquainted with her husband. He advised Mrs. Wilson that he desired to see Mr. Wilson but was informed by Mrs. Wilson that Mr. Wilson was busy and if he would state the nature of his business she might be able to take care of it. Richard Jordan then told her that he wanted to know the balance owing on his mother's account to Dr. Payne. Mrs. Wilson then proceeded to look up the record of the account and while doing so asked Richard Jordan what he did. Richard Jordan informed her that he was a law student at the University of Alabama, to which Mrs. Wilson laughingly said that, 'If you are intending to be a lawyer, I can give you some good advice.' Richard Jordan then said, 'If you don't mind, please ma'am, just tell me what the balance is. I think the University, I can learn all I need to know down there, if you just tell me what the balance is, that is all I want to know.' She then said, 'I just don't think I will tell you what the balance is.' He then said, 'All right, if you feel that way about it, I am sorry' and he walked out the door.

Upon leaving the office of Mr. Wilson, Richard Jordan went to his automobile and drove to his mother's home. While he was at his mother's home she called Mr. Wilson's office and ascertained that the balance on the claim was $8. Richard Jordan then went from his mother's home to the filling station operated by his brother, Jack Jordan, the plaintiff in the other suit, which was located in South Bessemer on Fairfax Avenue and 16th Street, in order to cash a government check for $100. However, he acquainted his brother with the fact that Mr. Wilson had sued his mother and his brother became upset. Jack Jordan then got in his automobile and accompanied Richard Jordan to see Mr. Wilson, testifying, 'I had an interest in the thing as well as he did; it was my mother, too.' Richard Jordan returned to the court house to see Judge Mathews, leaving his brother in the car. According to the testimony of Judge Mathews given in the disorderly conduct case and introduced by agreement in the instant case, Judge Mathews went off and came back and said that he had been told that the amount of the claim was $8 and asked if he could give a check to pay the claim. Richard Jordan pulled out some bills out of his pocket and Judge Mathews then said, 'You have got more money than I have, go and pay it.'

Richard Jordan and Jack Jordan then returned to Mr. Wilson's office and Richard Jordan told Mrs. Wilson that he was there to pay the balance on the account and gave her $8. Mrs. Wilson gave him a receipt for this amount and marked 'for balance.' Richard Jordan insisted that the receipt be marked 'paid in full' or 'for balance in full'. Mrs. Wilson fixed the receipt as requested but according to Richard Jordan she stated that 'any fool knows that balance means in full.' Richard Jordan then sat down and stated...