Louisiana Oil Refining Corporation v. Yelton

• Decision Date: 04 December 1933
• Docket Number: 4-3219 & 4-3288
• Parties: LOUISIANA OIL REFINING CORPORATION v. YELTON
• Court: Arkansas Supreme Court

65 S.W.2d 537

188 Ark. 280

LOUISIANA OIL REFINING CORPORATION v. YELTON

4-3219 & 4-3288

Supreme Court of Arkansas

December 4, 1933

Appeal from Arkansas Circuit Court, Northern District; W. J Waggoner, Judge; modified and affirmed.

STATEMENT BY THE COURT.

This suit was instituted by appellee against appellants to compensate an alleged malicious prosecution. The facts and circumstances as produced in testimony and found by the jury were to the following effect:

Appellant A. R. McKewen, was the residential manager and agent for the appellant, Louisiana Oil Refining Corporation, at Stuttgart. The Louisiana Oil Refining Corporation owned a system of storage tanks located at Stuttgart, and, in addition thereto also owned a filling station building, gasoline pumps and other necessary equipment to carry on its oil business. Appellant, A. R. McKewen, was employed by the Louisiana Oil Refining Corporation to conduct its business in that vicinity. Sometime prior to the alleged occurrence here in controvery, appellee, Ross Yelton, was employed by agent and manager McKewen to drive a gasoline distributing truck. This truck was used for the purpose of transporting gasoline kerosene, motor oils, etc., to the various customers of the Louisiana Oil Refining Corporation in and around Stuttgart. Under McKewen's contract of employment with the oil company, the agent was to and did furnish the chassis of the truck used in performance of this duty. The gasoline tank and frame of the truck were owned by the oil company. Leading up to this controversy, McKewen borrowed money from appellee, which was used in the purchase price of the chassis and truck. As security for this loan of money, McKewen executed to appellee a chattel mortgage on the truck. A few days prior to the incidents herein complained of, appellee was given a two weeks' lay-off by McKewen, and on the expiration of this time reported for duty, whereupon he was advised by McKewen that his services were no longer required by appellants. Some controversy then arose between McKewen and appellee as to the money due appellee under the chattel mortgage, but the money was not then paid over. Shortly thereafter appellee saw the truck upon which he had a chattel mortgage standing upon the streets of Stuttgart, and he took possession of same, drove it to his home and locked it up in his garage. McKewen made demand upon appellee for the return of the truck, equipment and stock of merchandise thereon. Appellee, according to his testimony, which was found to be true by the jury, offered to pay McKewen for the stock of merchandise on the truck, but this was refused. Immediately thereafter, and on the same day, McKewen procured the arrest of appellee on a warrant issued by a justice of the peace, in which warrant appellee was charged with grand larceny. The arrest occurred on Saturday, and on the following Monday appellee was acquitted and exonerated from said charge.

The testimony further tended to show that McKewen was the sole agent and manager of appellant oil company in Stuttgart; that he had exclusive possession of the properties of said oil company in that vicinity; that he had possession of the stock of merchandise, not as owner, but as agent of the oil company; that it was his duty to effect sales of the merchandise and to collect the money therefor or else effect sales upon approved accounts.

The instructions given and refused by the trial court are not complained of in briefs, therefore are not here set out. The jury returned a joint verdict against both appellants, and in favor of appellee, for the sum of $ 5,000, and from the judgment entered thereon, this appeal is prosecuted. Other facts will be stated or referred to in the opinion.

Judgment affirmed.

Ingram & Moher and Buzbee, Harrison, Buzbee & Wright, for appellant.

A. G. Meehan and John W. Moncrief, for appellee.

OPINION

JOHNSON, C. J., (after stating the facts).

Appellants first urge that the verdict against each appellant is not supported by the testimony. The basis for appellant's contention as to no liability against McKewen is put upon the following grounds:

That McKewen, prior to procuring the warrant of arrest, gave a full and fair statement of all the known facts to the public prosecutor, and he followed this advice. It suffices to say, in reference to this contention, that McKewen's testimony is flatly contradicted by that of the public prosecutor. This officer was a witness in the case and testified that, if McKewen had revealed all the facts when in his office, he would not have issued an information. It is true, of course, had McKewen given a full and fair statement of all the known facts in reference to the controversy to the public prosecutor, then had acted upon the advice of such official, it would be a complete defense. The jury found that McKewen did not make a full and fair statement of all the known facts to the public prosecutor, and its finding in this regard is supported by the testimony.

It is next said, in behalf of appellant McKewen, that the evidence fails to establish either want of probable cause or malice. This court held, in Williams v. Orblitt, 131 Ark. 408, 199 S.W. 91, that, in an action for damages for malicious prosecution, malice may be inferred where there was a lack of probable cause, even though there was no express showing of malice.

We also said in Kable v. Carey, 135 Ark. 137, 204 S.W. 748, that malice may be inferred from want of probable cause.

On the question of probable cause in the instant case but little need be said. Really, there can be no doubt but that appellant McKewen knew that appellee had no intention of stealing either the truck or the merchandise thereon. Without reviewing the testimony in this regard, it suffices to say that the jury was fully warranted in finding that appellant McKewen had no reason, cause or excuse for instituting the criminal prosecution against appellee. If appellant McKewen...