Margolis v. Telech, 17843

• Decision Date: 07 November 1961
• Docket Number: No. 17843,17843
• Parties: Agnes MARGOLIS, Respondent, v. Michael TELECH, Appellant.
• Court: South Carolina Supreme Court

Page 417

122 S.E.2d 417

239 S.C. 232

Agnes MARGOLIS, Respondent, v. Michael TELECH, Appellant.

No. 17843.

Supreme Court of South Carolina.

Nov. 7, 1961.

Harvey & Harvey, Beaufort, for appellant.

Dowling, Dowling & Sanders, Beaufort, for respondent.

LEWIS, Justice.

This appeal arises out of an action instituted by the plaintiff against the defendant for malicious prosecution, resulting from the prosecution of the plaintiff by the defendant on a charge of grand larceny. The trial of the case resulted in judgment for the plaintiff for both actual and punitive damages, from which the defendant has appealed, alleging error in the rulings of the lower Court (1) in refusing defendant's motion for a directed verdict in his favor, (2) in granting plaintiff's motion to strike certain allegations from the answer, and (3) in admitting in evidence the indictment upon which the Grand Jury had entered a no bill.

The controversy here arose over the ownership and possession of some of the personal property of the wife of the defendant under the circumstances hereinafter related. Since one of the main issues for our determination relates to the refusal of the trial judge to direct a verdict in favor of the defendant, we must review the evidence and, in doing so, the testimony and the reasonable inferences to be drawn therefrom must be considered in the light most favorable to the plaintiff.

The defendant is a brother-in-law of the plaintiff, having married her sister. His wife died on April 5, 1958 from cancer and the funeral was held on April 9th. The wife of the defendant had been in failing health for some time and was confined to her bed for several weeks before she died. She required constant care and the plaintiff, who resided at Elmira, New York, came to Beaufort, South Carolina, in February, 1958, to assist, along with another sister, in the care of the deceased, both residing with the defendant and his wife in their trailer home. After the death of the wife of the defendant, the plaintiff and her other sister continued to stay in the defendant's home until April 8th. On April 8th at about 10 o'clock p. m., the night before the funeral, the plaintiff and her sister moved from the trailer home of the defendant, where they had been residing, to a nearby trailer so that, as the plaintiff testified, some of the defendant's people who had arrived for the funeral could stay with the defendant. The defendant was not at home when the plaintiff moved.

When the plaintiff moved from the home of the defendant on the night of April 8th, she carried with her a diamond ring, a black coat, a blue suit, and a fur coat, all property which the defendant contends belonged to his wife. The plaintiff testified that the black coat was a gift from her to the deceased, but had never been worn, and the deceased had told her, with the full knowledge of the defendant, to take it back and get a return of her money. She further testified that the fur coat and blue suit had been loaned to the deceased by her and that the defendant knew of such fact. According to plaintiff's testimony, the ring had been given to her by the deceased about two weeks before she died and had been in the plaintiff's possession since that time.

Very soon after the death of his wife, the defendant began looking for her diamond ring. On the night of April 8th he was informed by a neighbor of a conversation by the neighbor with the plaintiff relative to where the ring was located. This neighbor told him that the plaintiff had informed her a day or so before that she, the plaintiff, had placed the ring in a small jewelry box belonging to defendant's wife. He was told to look in this jewelry box as the plaintiff had said that she put it there. Shortly after this conversation with the neighbor, the defendant returned to his trailer home and found that the plaintiff had moved to a nearby trailer. He testified that he searched his trailer and failed to find the ring or any of his wife's property. He then went to the trailer, to which the plaintiff had just moved, for the purpose of locating the ring. Testimony for the plaintiff is that, when the defendant came to the trailer where she was staying, he was angry, used profanity, almost knocked the door down, and accused the plaintiff of stealing his wife's ring, whereupon the plaintiff told him that his wife had given the ring to her and that she did not have anything that belonged to him. There is testimony that the defendant then told the plaintiff that he was going to have her arrested.

Following the foregoing incident, early on the next morning, before attending the funeral of his wife, the defendant went to a magistrate at Beaufort and procured the issuance of an arrest warrant for the plaintiff, in which he alleged that 'one Agnes Margolis (the plaintiff) did commit the crime of grand larceny by going in the home of Michael Telech (the defendant) and taking all of his deceased wife's clothing and one diamond ring worth $800.00 while Michael Telech was at the funeral home with his dead wife'. The defendant testified upon cross examination that the purpose for procuring the warrant for the plaintiff was to secure a return of the foregoing articles of personal property. Upon this warrant the plaintiff was arrested as she left the cemetery on her return from the funeral of her sister. A few hours later the plaintiff was released from custody after posting bond for her appearance at the next term of the Court of General Sessions for Beaufort County.

Since a charge of grand larceny is beyond the jurisdiction of the magistrate, the warrant was in the regular course sent to the Solicitor for action. At the June Term of the Court of General Sessions the Solicitor presented to the Grand Jury an indictment against the plaintiff containing two counts, one for housebreaking and the other for grand larceny. The Grand Jury returned the indictment with a no bill which was followed by an order of the Court releasing and discharging the plaintiff. This action for malicious prosecution followed.

During the trial the defendant made timely motion for a directed verdict in his favor upon the grounds that the evidence failed to show that he acted maliciously and without probable cause in instituting the prosecution against the plaintiff for grand larceny. The defendant also contended that the evidence was insufficient to sustain a verdict for punitive damages. This motion was refused and the defendant alleges that the lower Court erred in so doing.

It is well settled that, in order to maintain an action for malicious prosecution, it is incumbent upon the plaintiff to show that the prosecution was instituted maliciously, without probable cause, and that it terminated favorably to plaintiff. China v. Seaboard Air Line Ry., 107 S.C. 179, 92 S.E. 335; Stoddard v. Roland, 31 S.C. 342, 9 S.E. 1027. All of the foregoing issues were submitted by the trial judge to the jury for determination.

The defendant contends that the plaintiff has failed to show malice and want of probable cause necessary to sustain her action, but raises no question in this appeal as to the sufficiency of the evidence to show a termination of the prosecution favorably to the plaintiff. 'By probable cause is meant the extent of such facts and circumstances as would excite the belief in a reasonable mind acting on the facts within the knowledge of the prosecutor that the person charged was guilty of a crime for which he has been charged, and only those facts and circumstances which were or should have been known to the prosecutor at the time he instituted the prosecution should be considered. Brown v. Bailey, 215 S.C. 175, 54 S.E.2d 769; China v. Seaboard Air Line Ry., 107 S.C. 179, 92 S.E. 335.' Elletson v. Dixie Home Stores, 231 S.C. 565, 99 S.E.2d 384, 387.

Malice is the deliberate, intentional doing of a wrongful act without just cause or excuse. In the case of Hogg v. Pinckney, 16 S.C. 387, cited with approval in Jennings v. Clearwater Mfg. Co., 171 S.C. 498, 172 S.E. 870, it is said that 'the term 'malice', as applied to torts, does not necessarily mean that which must proceed from a spiteful, malignant or revengeful disposition, but a conduct injurious to another, though proceeding from an ill-regulated mind not sufficiently cautious before it occasions an injury to another. 2 Bouv.Dic. 98.' And, in the same case, it is said: Malice 'is implied where it shows a disregard of the consequences of the injurious act, without reference to any special injury which he may inflict on another', and 'in doing some illegal act for one's own gratification or purposes, without regard to the rights of others or the injury he may inflict on another.' And in actions for malicious prosecution malice may be inferred from a want of probable cause. Elletson v. Dixie Homes Stores, supra, 231 S.C. 565, 99 S.E.2d 384; Brown v. Bailey, supra, 215 S.C. 175, 54 S.E.2d 769.

In the light of the foregoing principles, we think that the facts and circumstances of this case presented issues which were properly submitted to the jury for determination. The evidence shows that the plaintiff was of good reputation. She was a sister-in-law of the defendant and had resided in his home for a period of approximately thirty days during the last illness of his wife. There is testimony that the defendant knew that the...