King v. Farrell

• Decision Date: 21 May 1975
• Citation: 55 Ala.App. 147,314 So.2d 68
• Parties: George D. KING v. Claude M. FARRELL. Civ. 1.
• Court: Alabama Court of Civil Appeals

Page 68

314 So.2d 68

55 Ala.App. 147

George D. KING v. Claude M. FARRELL.

Civ. 1.

Court of Civil Appeals of Alabama.

May 21, 1975.

Howell, Johnston, Langford, Finkbohner & Lawler, Mobile, for appellant.

Lyons, Pipes & Cook and Cooper C. Thurber, Mobile, for appellee.

BRADLEY, Judge.

The plaintiff, George D. King, commenced this action on November 24, 1969 by filing a complaint in the Circuit Court of Mobile County against defendant, Claude M. Farrell, seeking damages for malicious prosecution and false imprisonment. Defendant filed pleas of not guilty and the general issue. Trial was had before the court and the jury on both counts of the complaint. At the end of the trial and at the request of defendant, the general affirmative charge without hypothesis was given. There was a motion for new trial based on the giving of the general charge. The request for a new trial was denied. The appeal is from the judgment in favor of defendant and the refusal of a new trial.

The two assignments of error are posited on these two rulings of the trial court. The argument in brief, however, seeks to overturn the rulings of the trial court only as they relate to the malicious prosecution count; we assume, therefore, that plaintiff does not wish to argue the merits of the false imprisonment count, and we will confine our decision to that aspect of the trial court's ruling relating to the malicious prosecution count.

The facts show that in June or July of 1969, plaintiff agreed to purchase a lot from Mr. James Vrachalus that fronted on Dog River in Mobile County. Mr. Claude Farrell owned the property adjoining the Vrachalus property. In 1959 Farrell and Vrachalus had installed a bulkhead around a portion of each of their lots. Each landowner paid for the portion of the bulkhead that extended from his lot into Dog River.

Some ten years after the building of the bulkhead, the adjoining property owners, Farrell and Vrachalus, being unable to agree on the location of the boundary line between their lots, asked the Circuit Court of Mobile County to resolve the disagreement. The decree was rendered providing in essence that neither property owner had the right to build the bulkhead and fill in behind it beyond the high-water mark on the shore of Dog River, and, that upon six months' written notice, either owner might demand the removal of the bulkhead and restoration of the lands to their original boundaries. The decree also provided that the court retain jurisdiction for the settlement of controversies arising out of its interpretation or enforcement.

Mr. Vince Kilborn, an attorney in Mobile, represented Mr. Farrell in this proceeding, and is the person to whom Mr. Farrell referred Mr. King concerning questions that he might have relating to the court decree fixing the boundary and prescribing the terms for the removal of the bulkhead. Mr. King talked to Mr. Kilborn on several occasions.

After talking with Farrell and Kilborn, Mr. King suggested that they accept a common boundary line between their property; however, Mr. Farrell would not agree to any change in the dividing line.

Upon the failure to obtain an agreement, Mr. King delivered to Mr. Farrell a written notice demanding the removal of the bulkhead as provided in the court decree. However, before the end of the six months' period as provided in the decree, Mr. King went to the property and dug out behind the bulkhead which was paid for by and fronted on Mr. Farrell's property for some fifteen to sixteen feet and also splintered a bulkhead stringer with his axe. Prior to this action, Mr. King had notified both Mr. Farrell and Mr. Kilborn that he intended to remove the bulkhead if it was deemed necessary.

Upon learning of the damage done by King, Mr. Farrell called Mr. Kilborn and asked what should be done. Mr. Kilborn advised Mr. Farrell to make a complaint against Mr. King in the Court of General Sessions of Mobile County. The complaint made by Mr. Farrell against King was for maliciously destroying private property. King was arrested on the complaint, jailed, and later released on bond. After the hearing before the court, King was discharged and the complaint dismissed as being a 'civil matter.'

One month later, the present proceedings were filed against Mr. Farrell by Mr. King.

We concluded in Ford Ins. & Real Estate Co. v. Thrasher, 45 Ala.App. 592, 234 So.2d 590, that for one to succeed in a malicious prosecution action, the averments and proof must show: (1) a judicial proceeding; (2) that it was instigated by the defendant; (3) want of probable cause; (4) malice; (5) the termination of the judicial proceeding favorably to the plaintiff; and (6) damages.

In the instant case the dispute over the failure of proof centers around the want of probable cause and malice. Malice and lack of probable cause must concur; otherwise there cannot be a malicious prosecution. Birwood Paper Company v. Damsky, 285 Ala. 127, 229 So.2d 514. Plaintiff contends, however, that the evidence offered in support of the issue of lack of probable cause was in dispute and was therefore a matter for the jury rather than for the court. Reliance is placed on Alabama Dry Dock & Shipbuilding Co. v. Bates, 33 Ala.App. 81, 30 So.2d 273. It is there stated:

'It is well established by the authorities that if there is a dispute in the evidence with reference to probable cause, this presents an inquiry to be determined by the jury and cannot be decided as a matter of law by the court. (Citations omitted.)'...