Kitchens v. Barlow, 42932

• Decision Date: 01 June 1964
• Docket Number: No. 42932,42932
• Parties: Odus Allen KITCHENS v. James L. BARLOW et al.
• Court: Mississippi Supreme Court

Page 745

164 So.2d 745

250 Miss. 121

Odus Allen KITCHENS v. James L. BARLOW et al.

No. 42932.

Supreme Court of Mississippi.

June 1, 1964.

Young & Young, Pat H. Scanlon, Jackson, for appellant.

John R. Poole, Watkins, Pyle, Edwards & Ludlam, G. M. Walker, Jackson, for appellees.

KYLE, Presiding Justice:

Odus Allen Kitchens, plaintiff, filed his declaration in the Circuit Court of the First Judicial District of Hinds County against Mrs. Olie M. Polk and Ray Lofton, resident citizens of Marion County, Mississippi, and James L. Barlow and Bayard T. Van Hecke, resident citizens of the First Judicial District of Hinds County, and Jitney Jungle Stores, Incorporated, Aetna Casualty and Surety Company, a Connecticut Corporation, qualified to do business in Mississippi, and Maryland Casualty Company, a Maryland Corporation qualified to do business in Mississippi, defendants, in an action for damages for abuse of process, malicious prosecution, negligence, false arrest and unlawful imprisonment.

The plaintiff alleged in his declaration that on August 2, 1961, the Jitney Jungle Stores received a check from one 'R. A. Kitchen' for $7.46, a photographic copy of the check being attached to the plaintiff's declaration as Exhibit 'B' thereto. The check was in words and figures as follows:

'DATE August 2 1961

DEPOSIT GUARANTY BANK & TRUST CO.

Jackson, Mississippi

Pay to the

Order of

JITNEY JUNGLE #6

7 46/100

Seven and forty six cts DOLLARS

Account Number 47-488-20

and signed:

R. A. Kitchen

1021 Whitworth'

The declaration further alleged that on or about October 23, 1961, the defendants, Bayard T. Van Hecke and Jackson Jitney Jungle Stores, Inc., made and executed a criminal bad check affidavit before the defendant, James L. Barlow, a duly elected and qualified justice of the peace of Hinds County, for the arrest of one 'R. A. Kitchen, alias Allen Kitchen', for the crime of issuing a check under false pretenses, in violation of Section 2153, Miss.Code of 1942, Rec. A photographic copy of the affidavit and check were attached to the declaration as Exhibits 'A' and 'B' thereto. The declaration further alleged that at all times related therein, the defendant, Bayard T. Van Hecke, was acting as an officer or agent of the Jitney Jungle Stores, Inc., and was acting within the scope and course of his employment. The declaration further alleged that the defendants, Bayard T. Van Hecke, Jackson Jitney Jungle Stores, Inc., and James L. Barlow caused to be prepared and forwarded a criminal warrant for the arrest of 'R. A. Kitchen, alias Allen Kitchen', to the defendant Mrs. Olie M. Polk, the duly elected, qualified and acting sheriff of Marion County, and that they erroneously advised Mrs. Polk that the signer of the check could be found at either the address where the plaintiff was then living, or the place where the plaintiff was when employed, a photographic copy of said warrant being attached to the declaration as Exhibit 'C'.

The plaintiff further alleged that, upon receipt of the above mentioned warrant and information, the defendant Mrs. Olie M. Polk turned the warrant over to the defendant Ray Lofton her duly appointed, qualified and acting deputy, who proceeded to the place where the plaintiff was working, and making no effort whatsoever to ascertain the plaintiff's complete name arrested the plaintiff and placed him in the Marion County jail at Columbia; that Lofton refused to heed the plaintiff's insistent protest, that he was not the party named in the warrant and also the plaintiff's offers to prove his true identity. The plaintiff further alleged that he was left in his cell as a common prisoner for many hours, his continued protest being ignored unless and until the amount of said check and all costs of court were paid; and that, finally, at the conclusion of the work day, one of the plaintiff's fellow workers came to the jail and loaned the plaintiff sufficient cash to pay the sum demanded and thereby obtain his release; that the plaintiff paid the total sum of money demanded by the defendants Polk and Lofton, which included the amount of the check held by Jitney Jungle Stores, Inc., the court costs of the defendant James L. Barlow and the fees and mileage of the defendants Polk and Lofton, and upon payment of said sum the plaintiff was released from jail and allowed his freedom; that the sum of money thus paid was accepted by the defendants, Polk and Lofton, and after deduction of their fees and mileage was forwarded to the defendant Barlow, who deducted his fees and court costs and sent the remainder of the money to the defendant Jitney Jungle Stores, Incorporated.

The plaintiff further alleged that his name was 'Odus Allen Kitchens,' and that he had never used or gone by the name of R. A. Kitchen,' and that he was not the person who executed the check to the Jackson Jitney Jungle Stores, Inc.

The plaintiff charged that the defendants, Bayard T. Van Hecke and Jackson Jitney Jungle, Inc., were guilty of a willful, malicious abuse of criminal process when Bayard T. Van Hecke, acting for and on behalf of the Jackson Jitney Jungle Stores, Inc., made the affidavit before Justice of the Peace Barlow for the ulterior purpose of collecting or extorting the payment of money by the perversion of said criminal process for the alleged debt due Jackson Jitney Jungle Stores, Inc., by one R. A. Kitchen.

The plaintiff further charged that, as a result of the making and filing of the affidavit, the defendant James L. Barlow issued a warrant for the arrest of one 'R. A. Kitchen alias Allen Kitchen'; that said warrant was willfully and maliciously issued, perverted and used to force the payment of money by the plaintiff, which was a result not commanded by said warrant and not lawfully returnable under it. The plaintiff further charged that the defendant Barlow abused a criminal process when he so issued, perverted and used it to collect from the plaintiff the alleged debt, the costs of the justice of the peace court and the costs and fees of the defendants Mrs. Polk and Lofton; and that the defendant Barlow did not have jurisdiction or authority to issue, pervert and use a criminal warrant for the collection of a civil debt, and in so doing the defendant Barlow acted outside the scope of his jurisdiction and authority.

The plaintiff further charged that the defendants, Mrs. Olie Polk and Ray Lofton, were guilty of a willful and malicious abuse of a criminal process when they took, used and perverted the criminal process for the purpose of collecting or extorting the payment of money from the plaintiff for the payment of the alleged debt owed the Jackson Jitney Jungle Stores, Inc., and for the payment of the costs of the defendant Barlow and their own fees and costs.

The plaintiff further alleged that the defendant Maryland Casualty Company was a surety on the official bond of the defendant, James L. Barlow, justice of the peace, and responsible for the faithful performance of the duties of his office; and that the defendant, Aetna Casualty and Surety Company, was the surety on the official bond of Mrs. Olie M. Polk, Sheriff, and was responsible for the faithful performance of the duties of her office. Certified copies of the official bonds of each of said officers were attached as exhibits to complainant's declaration.

The plaintiff alleged that he was a citizen of good moral character and had a reputation, both business and social, in the communities where he has resided as being a good, honest, sober and reliable citizen; that as a direct proximate result of the aforesaid wrongful acts on the part of all of the defendants, the plaintiff had lost two days from his employment, in addition to the sum of money he had paid the defendants Polk and Lofton in order to obtain his release and freedom; that he had suffered humiliation, embarrassment and ridicule, and his reputation among his friends and associates had been subjected to doubt and suspicion, all as a direct proximate result of the willful, malicious acts of the defendants, entitling him to damages both actual and punitive from all of the defendants.

In Count 2 of his declaration the plaintiff alleged that the defendants, Jackson Jitney Jungle Stores, Inc., Bayard T. Van Hecke and James L. Barlow, were guilty of malicious prosecution of the plaintiff when they instituted a criminal proceeding which resulted in his arrest and confinement; and that the defendants, Mrs. Olie M. Polk and Ray Lofton, were guilty of malicious prosecution of the plaintiff, when they continued the criminal prosecution with malice and without probable cause by placing the plaintiff in confinement in the Marion County jail; that the prosecution terminated in the plaintiff's favor when he paid all fees and costs and the amount of the alleged debt; and that all of the defendants were guilty of malicious prosecution, since they were using a criminal process to collect a civil debt.

In Court 3 of his declaration the plaintiff alleged that the defendants, Bayard T. Van Hecke, Jackson Jitney Jungle Stores, Inc., and James L. Barlow, acted with gross negligence when they made insufficient and incomplete investigation to ascertain the correct identity and whereabouts of the true signer of the check in question; and the defendants were grossly negligent in assuming that the plaintiff was the signer of the check; that the defendants, Mrs. Olie M. Polk and Ray Lofton, were both guilty of negligence when they contacted the plaintiff and made no effort, or insufficient effort, to ascertain the plaintiff's true name and identity, and were grossly negligent in the execution of the criminal warrant calling for the arrest of 'R. A. Kitchen, alias Allen Kitchen'; and the joint and concurrent negligence of all the parties was such as to entitle the plaintiff to punitive damages against all of the defendants.

In a fourth count of his declaration the plaintiff adopted all of the allegations set...