Kitchens v. Winn-Dixie Montgomery, Inc., WINN-DIXIE
| Decision Date | 31 August 1984 |
| Docket Number | WINN-DIXIE |
| Parties | Agnes KITCHENS v.MONTGOMERY, INC., et al. 83-586. |
| Court | Alabama Supreme Court |
Cary L. Dozier, Troy, for appellant.
Randall Morgan of Hill, Hill, Carter, Franco, Cole & Black, Montgomery, and Richard F. Calhoun of Brantley & Calhoun, Troy, for appellees.
This is an appeal from the trial court's order granting summary judgment in favor of Defendants/Appellees in a malicious prosecution action. We affirm in part, reverse in part, and remand.
On the night of April 6, 1983, a robbery took place at the Winn-Dixie store in Troy, Alabama. Charged with committing that robbery were Agnes Kitchens (Plaintiff/Appellant), Larry James, and Walter James. The complaint charging Kitchens with first degree robbery was signed by Tony Alcuri, an employee of Winn-Dixie, who was on duty at the Troy store on the night of April 6.
At the preliminary hearing, held on May 17, 1983, the judge discharged Kitchens, finding that "it appeared that there was not probable cause to believe that [Kitchens] was guilty as charged." Later, the Pike County Grand Jury returned an indictment against Kitchens, charging her with conspiracy to commit robbery. At trial on this charge, Kitchens' motion for acquittal, made at the close of the State's case, was granted.
Kitchens instituted this action against Winn-Dixie Montgomery, Inc., and Tony Alcuri, alleging malicious prosecution and false imprisonment. On February 23, 1984, the trial judge granted Defendants'/Appellees' motion for summary judgment. From that order, Kitchens appeals.
We quote directly from Appellant's brief:
"Appellant contends that there is a substantial issue which exists as to whether or not Appellees acted without probable cause and with malice or reckless disregard of Appellant's rights when Appellees instituted Criminal Proceedings against her (Appellant)."
The issue presented by this appeal, then, is whether the evidence created a genuine issue of material fact with regard to the existence vel non of the elements of malicious prosecution, keeping in mind that Kitchens' claim is confined to the alleged malicious prosecution arising out of the signing of a warrant by Tony Alcuri. In
other words, by so confining her contention of error, Appellant waives any claim with respect to the prosecution growing out of the grand jury indictment.
In order to succeed in a malicious prosecution action, the averments and proof must show: 1) a judicial proceeding; 2) 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. King v. Farrell, 55 Ala.App. 147, 314 So.2d 68 (1975). If any of these elements is missing, the action will fail.
It is undisputed that the Defendants initiated the original criminal proceedings against the malicious prosecution Plaintiff, who was discharged for want of probable cause by the district court upon preliminary hearing. Because malice may be inferred from want of probable cause, S.S. Kresge Co. v. Ruby, 348 So.2d 484 (Ala.1977), the crucial question with regard to the correctness of the summary judgment order is the determination of the existence vel non of probable cause as to this limited phase of the prosecution.
"Probable cause," as that term is used in malicious prosecution actions, is defined as "such a state of facts in the mind of the prosecutor as would lead a man of ordinary caution and prudence to believe or entertain an honest or strong suspicion that the person arrested is guilty." Hanson v. Couch, 360 So.2d 942, 947 (Ala.1978). The evidence shows that on the day after the robbery, Tony Alcuri went to the Troy Police Department to swear out warrants against the two men allegedly involved in the robbery. When he arrived, he was presented with three warrants instead of two. Although Alcuri testified that he "was not familiar with the third warrant against Kitchens," William Stone, the Clerk of the Pike County Circuit Court, assured Alcuri that enough evidence existed to connect Kitchens with the two men as an accomplice.
As with any issue on summary judgment, if the facts are not in dispute, a question of law is presented to be decided by the trial court; where the evidence is in conflict, the issue must...
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