Kroger Co. v. Puckett

• Decision Date: 28 September 1977
• Citation: 351 So.2d 582
• Parties: The KROGER COMPANY and Frankie Seamons v. Lola Burt PUCKETT. The KROGER COMPANY and Frankie Seamons v. Hazel HARTON. Civ. 1081 and Civ. 1082.
• Court: Alabama Court of Civil Appeals

Page 582

351 So.2d 582

The KROGER COMPANY and Frankie Seamons v. Lola Burt PUCKETT.

The KROGER COMPANY and Frankie Seamons v. Hazel HARTON.

Civ. 1081 and Civ. 1082.

Court of Civil Appeals of Alabama.

Sept. 28, 1977.

Rehearing Denied Nov. 2, 1977.

William E. Shinn, Jr., Decatur, for appellants.

Miles T. Powell, Decatur, for appellees.

BRADLEY, Judge.

This is an appeal from judgments rendered against appellants in the Circuit Court of Morgan County. The cases on which this appeal is taken resulted from an alleged shoplifting incident at the Kroger supermarket in Decatur, Alabama.

Briefly, the following sequence of events transpired. On march 18, 1975 the appellees, Mrs. Hazel Harton and her mother, Mrs. Lola Puckett, went grocery shopping at appellants' store. While in the store, the women's actions caused a Kroger employee, appellant Frankie Seamons, to suspect that Mrs. Harton and Mrs. Puckett were engaged in the process of shoplifting various items. As Mrs. Harton and Mrs. Puckett left the store to return to their automobile, Seamons confronted them with his suspicions and demanded that they show him the contents of their pocketbooks. Both women ignored Seamons' demands, whereupon he followed them to their car. At appellees' automobile, Seamons' demands to examine the contents of Mrs. Harton's and Mrs. Puckett's pocketbooks were again refused. As a result of this refusal an altercation occurred in which Seamons grabbed and scuffled with both women in an effort to obtain their pocketbooks. When his efforts to search the pocketbooks were unsuccessful, Seamons returned to the Kroger store and called the police.

Shortly after appellees returned to their home they were confronted by police officers who searched the women's automobile. This search did not reveal any stolen items. Nonetheless, on the following day Mrs. Harton and Mrs. Puckett were called to the Decatur police station where they were arrested and booked on the charge of petty larceny. The women were subsequently tried and found guilty of petty larceny by the Decatur City Recorder. Appellees appealed this conviction to the Morgan County Court. A trial de novo was demanded by the appellees and a jury was impanelled to hear their case.

At the close of the prosecution's case-in-chief, appellees' attorney made a motion to exclude the prosecution's evidence on the ground that there was a fatal variance between the information on which the appellees were tried and the proof presented by the prosecution at the trial. This variance was the result of an inconsistency between the information against appellees which alleged that the stolen property belonged to "The Kroger Company, a corporation" and testimony at trial which demonstrated that the property belonged to "The Kroger Co., Inc." or to "The Kroger Company." Because of this variance, the trial court granted appellees' motion and the jury was dismissed without deciding the merits of the case.

As a consequence of the aforementioned events, appellees brought separate civil actions against the appellants. Both Mrs. Harton's and Mrs. Puckett's complaint contained two counts. Under count one each woman claimed that appellant Seamons, as an employee of Kroger, had committed an assault and battery against them. Under count two both women alleged that appellant Kroger and its employee Seamons had maliciously prosecuted them for petty larceny.

The two actions were consolidated for trial and the case was tried before a jury in the Morgan County Circuit Court.

At the close of the evidentiary phase of the trial, appellants' attorney made a motion for a directed verdict. This motion sought to prevent the jury from considering the count for malicious prosecution. The trial court denied this motion and the case went to the jury on the count for assault and battery and the count for malicious prosecution. After consideration of both counts the jury rendered a general verdict on behalf of each appellee in the amount of $2,000. From these verdicts Kroger and Seamons appeal.

On appeal, appellants urge that the trial court improperly denied their motion for a directed verdict. Appellants claim that the trial court's ruling on their motion was in error for two reasons. First, appellants contend that in order to bring a civil action for malicious prosecution, the criminal proceeding upon which the malicious prosecution action is based must have terminated in such a manner as to indicate the innocence of the accused. In this respect, appellants argue that the criminal proceeding upon which appellees' suit for malicious prosecution was founded ended as the result of a technicality rather than as the consequence of a finding by the trier of fact that the accused persons were innocent. Second, appellants urge that where the plaintiffs (appellees) in a malicious prosecution action have testified that they were "acquitted" of an earlier criminal charge against them thereby suggesting that such charge has been considered on its merits and found deficient, it is error for the trial court to have excluded defense (appellants') evidence as to the actual manner in which the criminal proceeding has been disposed of.

Appellants' first contention is based on the proposition that the termination of the criminal proceeding against appellees was not sufficient to permit their action for malicious prosecution. The case of Johnston v. Duke, 284 Ala. 359, 224 So.2d 906, set out the elements necessary to maintain a suit for malicious prosecution in this jurisdiction. The elements required for such an action are: (1) institution or continuation of an original judicial proceeding, either civil or criminal; (2) by or at the instance of the defendant; (3) termination of such proceeding in the plaintiff's favor; (4) malice in instituting the proceeding; (5) want of probable cause for the proceeding; and (6) injury or damage as the result of the prosecution's complaint. See S. S. Kresge Co. v. Ruby, Ala., 348 So.2d 484.

It is with respect to the third of the above listed elements that appellants claim error. Appellants urge that the granting of a motion to exclude the prosecution's evidence at the close of its case-in-chief in a criminal proceeding on the ground that there was a fatal variance between proof at trial and the information against the accused women does not constitute a termination in favor of the accused since the proceeding ended without an indication of the guilt or innocence of appellees. We disagree.

A number of courts in other jurisdictions have taken the view that the criminal proceeding against the accused must have terminated in a manner consistent with the innocence of the accused rather than on the basis of a procedural or technical defect. Oppenheimer v. Tamblyn, 167 Cal.App.2d 158, 334 P.2d 152; Jaffe v. Stone, 18 Cal.2d 146, 114 P.2d 335; Siegel v. City of Chicago, 127 Ill.App.2d 84, 261 N.E.2d 802. See Restatement (Second) Torts, § 663 and comment d. But this is not the rule in Alabama.

To subject a person to liability for malicious prosecution in Alabama, the criminal proceeding on which such action is based must have terminated in favor of the accused. S. S. Kresge Co. v. Ruby, supra. In order that there may be sufficient termination in favor of the accused it is not necessary that the proceeding should have gone so far as to preclude further prosecution on the ground of double jeopardy. Restatement (Second) of Torts, § 659, comment b.; 52 Am.Jur.2d Malicious Prosecution, § 37. It is enough that the proceeding is terminated in such a manner that it cannot be revived and the prosecutor, if he proceeds further, will be put to a new prosecution. Southern Car & Foundry Co. v. Adams, 131 Ala. 147, 32 So. 503; Birmingham Bottling Co. v. Morris, 193 Ala. 627, 69 So. 85. This is true, for example, of a discharge by a magistrate at a preliminary hearing because the evidence produced against the accused is not sufficient to warrant his being held for further proceedings to determine his guilt or innocence; the refusal of a grand jury to indict; the formal abandonment of the criminal proceeding by a public prosecutor by an entry of a nolle prosequi ; the quashing of an indictment or information by a person of proper authority; or a final order by a trial or appellate court which precludes the bringing of further proceedings against the accused in the particular matter before the court. Restatement (Second) of Torts, § 659, and comments thereto.

Moreover, this rule would seem to encompass any situation where the criminal proceeding against the party is dismissed from court, and thereby terminated so far as that particular prosecution is concerned. See Roughton v. Jackson, 37 Ala.App. 17, 64 So.2d 112. Furthermore, the rule permitting a malicious prosecution action if there has been a termination of the particular prosecution against the accused is applicable even in situations where the discharge by the magistrate, or withdrawal by the prosecution, would not preclude future criminal proceedings against the accused on the same charge. ¹ Stewart v. Blair, 171 Ala. 147, 54 So. 506.

In Stewart v. Blair, supra, the plaintiff in the malicious prosecution suit had been discharged of the earlier proceedings against him by a committing magistrate. The defendant in the malicious prosecution suit claimed that only a showing by the plaintiff that the grand jury had refused to indict him would constitute a sufficient termination in favor of the accused. Our supreme court rejected defendant's contention and held that the discharge by the magistrate, even though he was only a committing magistrate, was a termination of the particular prosecution against the accused and thereby enabled the latter to bring his civil action for malicious prosecution.

In Sandlin v. Anders, 187 Ala. 473, 65 So. 376, a magistrate misconceived the nature of the prosecution against the accused and thus labeled it incorrectly so that it was...