Landers v. Kroger Co.

• Citation: 539 S.W.2d 130
• Parties: Sally LANDERS, Appellee, v. The KROGER COMPANY, Appellant.
• Decision Date: 12 March 1976
• Court: Court of Appeals of Tennessee

Page 130

539 S.W.2d 130

Sally LANDERS, Appellee, v. The KROGER COMPANY, Appellant.

Court of Appeals of Tennessee, Eastern Section.

March 12, 1976.

Certiorari Denied by Supreme Court July 26, 1976.

James A. Ridley, III, of Kramer, Johnson, Rayson, Greenwood & McVeigh, Knoxville, for appellant.

John T. Baugh, of Kennerly, Montgomery, Howard & Finley, Knoxville, for appellee.

OPINION

PARROTT, Presiding Judge.

This malicious prosecution suit grows out of The Kroger Company's criminally prosecuting plaintiff, Sally Landers, for fraudulently obtaining money by means of a check which was returned unpaid because of 'insufficient funds.'

Kroger has appealed from the action of the circuit judge in overruling its motion for new trial and entering, in accord with a jury verdict, judgment for plaintiff in the amount of $5,000.00 compensatory damages and $2,500.00 punitive damages.

Sally Landers, a 17-year old University of Tennessee student from Chattanooga, living in a dormitory at Knoxville, cashed a $20.00 check at a Knoxville Kroger store on August 13, 1974. On the face of the check was printed Miss Lander's Chattanooga address and on the back of the check was written in longhand by Miss Landers her social security number and Knoxville address at a University of Tennessee dormitory.

It is admitted this check was returned to Kroger marked 'insufficient funds.' Miss Landers testified that the night before she wrote the check she called her mother asking that some money be put in the bank. The undisputed proof shows that on September 10, 1974, Kroger caused to be mailed to Miss Landers at her U.T. address a letter with adequate postage advising her that the check was returned for 'insufficient funds.' On September 17, more than five days after mailing the notice, Kroger procured a warrant charging Miss Landers with fraudulently obtaining money by means of a worthless check. Kroger did not send a letter to her Chattanooga address, nor did it attempt to call the Chattanooga phone number. The Kroger employees say they are sure they tried to telephone Miss Landers at Knoxville but have no specific recollection of the phone call. Miss Landers testified she never received the written notice or a telephone call.

In the latter part of September when Miss Landers returned to U.T., she moved to another dormitory where, on September 28, 45 days after writing the check, she was arrested on the warrant procured on September 19.

After Miss Landers' arrest at the dormitory, she was taken to the Knox County jail where it was discovered she was only 17 years of age. After discovering she was a minor, Miss Landers was taken to the Knox County Juvenile Court. At the juvenile court, counselor Mary Martha White, after interviewing Miss Landers, conferred with the juvenile judge and it was apparently agreed to handle the matter on an informal basis. Counselor White placed a call to the Kroger store asking that, if Miss Landers would pick up and pay the check, would Kroger dismiss the prosecution. Kroger agreed to Counselor White's suggestion which was agreeable to Miss Landers.

Miss Landers testified that when she went to the Kroger store to pay the check she saw a letter with her name and Knoxville address on it which she thinks had stamped on it in red 'Return to Sender.' Michael Jackson, co-manager of the Kroger store where Miss Landers picked up the check, testified the letter to Miss Landers was not returned and he never had it in his possession.

For a plaintiff to be successful in a malicious prosecution case growing out of an arrest for an alleged criminal act, it must be alleged and provide that: a criminal proceeding has been instituted by the defendant against the plaintiff; such proceeding terminated in favor of accused; there was an absence of probable cause for the proceeding; and, there was malice or a primary purpose other than that of bringing defender to justice. F. W. Woolworth Co. v. Connors, 142 Tenn. 678, 222 S.W. 1053 (1920); Pharis v. Lambert, 33 Tenn. 228 (1853); Restatement of Torts, Wrongful Prosecution, Sec. 653; Prosser Law of Torts, 4th ed., Sec. 119.

'Definitions of probable cause, however differently expressed, all agree in these two essentials: (1) The prosecutor must in good faith have honestly believed the accused was guilty of the crime charged; and (2) his belief must have been reasonable--based on facts and circumstances sufficient to lead an ordinarily prudent person to believe the accused was guilty of the crime charged. The prosecutor must have made the investigation an ordinarily prudent person would have made in the circumstances.' Thompson v. Schulz, 34 Tenn.App. 488, 240 S.W.2d 252 (1940).

In a malicious prosecution action the existence or lack of existence of probable cause is a question of law for the court. When probable cause is to be determined from undisputed or admitted facts, the determination is a matter of law exclusively for the court. Cohen v. Cook, 224 Tenn. 729, 462 S.W.2d 499 (1970); Peoples Protective Life Ins. Co. v. Neuhoff, 56 Tenn.App. 346, 407 S.W.2d 190 (1966).

Under the facts of this case and the applicable law we believe the defendant had probable cause to arrest Miss Landers. Prior to procuring the...