Mary Finney v. James Zingale.

• Decision Date: 07 May 1918
• Citation: 82 W.Va. 422
• Parties: Mary Finney v. James Zingale.
• Court: West Virginia Supreme Court

82 W.Va. 422

Mary Finney

v.James Zingale.

Supreme Court of Appeals of West Virginia.

Submitted April 16, 1918.

Decided May 7, ' 1918.

1. False Imprisonment Gist of Action.

The gist of an action of false imprisonment or false arrest is the illegal detention of a person without lawful process or by an unlawful extension of such process, (p. 425).

2. Same Arrest Liability.

An arrest is not necessarily unlawful so as to afford ground for an action of false imprisonment because the plaintiff was innocent of the offense for which the arrest was made, if the forms of law were observed, as where the warrant was issued, upon proper complaint, by an official clothed with authority to issue them and was executed by the arrest of the plaintiff by a proper officer in a lawful manner. (p. 425).

3. Malicious Prosecution Right of Action Elements.

To maintain an action for malicious prosecution it is essential to prove (1) that the prosecution was malicious, (2) that it was without reasonable or probable cause, and (3) that it terminated favorably to plaintiff. (p. 424).

Error to Circuit Court, McDowell County. Action by Mary Finney against James Zingale. Judgment for defendant, and plaintiff brings error.

Affirmed.

Anderson, Strother, Hughes & Curd, for plaintiff in error.

A. G. Froe, II. J. Capehart and Litz & Harman, for defendant in error.

Lynch, Judge:

In the first of the two counts of the declaration, a count for malicious prosecution, the plaintiff averred, among other things necessary to show the cause of action, that the defendant appeared before W. E. Stuart, Mayor of the city of Keystone, authorized by law to issue warrants in criminal cases, and falsely and maliciously and without any reasonable and probable cause whatsover charged plaintiff "with some such offense as aiding and abetting one Nannie Spinello and Joe Zingale in lewd, lascivious and unlawful cohabitation or some other charge of a similar nature, the purport of which is to plaintiff unknown", and upon such charge falsely and maliciously and without any reasonable or probable cause procured the said Stuart as such mayor to make and grant a certain warrant in due form of law for the apprehension of plaintiff and for bringing her before the said mayor to answer the said charge and to be further dealt with according to law; and by virtue of such warrant defendant caused her wrongfully and unjustly and without any reasonable or probable cause to be arrested, detained and kept in the custody of the law and carried before the said mayor, who, having considered all the defendant could say, allege or prove against her concerning the said offense, adjudged her not to be guilty thereof and acquitted her.

In the second count, a count for false arrest, the averments differ from those of the first only in the following respects: That the charges were not in writing and no warrant was issued, yet at the instance of the defendant and without any reasonable or probable cause he induced the mayor to have the plaintiff arrested and brought before him and to be held by the officer making the arrest until her guilt or innocence upon such charge could be determined by a trial, and that said trial was had and she was acquitted and discharged from custody.

The evidence adduced by the plaintiff in support of the causes so averred being" excluded from consideration by the jury upon the motion of the defendant, they found for him and the court entered the judgment to which she prosecutes this writ.

Though it appears from the testimony of Stuart, the mayor, who was called as a witness for plaintiff, that one or two complaints were made by police officer Downs and a warrant was issued on. each complaint, the nature and character of the offense charged is not revealed either by a complaint or warrant produced or filed, or otherwise than by the testimony of the plaintiff that she was informed by Downs that her house was "pulled", and by memoranda on the mayor's docket, placed thereon probably by Downs. So far as the memoranda concern the plaintiff they are: "May 22, 1917. Mary Finney; charge, violating city ordinance. Warrant issued on. complaint of W. M'. Downs. The officer was Bernard. Prisoner brought before W. B. Stuart, Mayor, for trial. Dismissed." While not formally offered or admitted in evidence, the entries, however, were withdrawn from the jury over the objection of the defendant, and thereby was eliminated the only record evidence or documentary proof of what actually occurred as regards the arrest and discharge of the accused, and, so far as material to defendant's liability, left only the oral testimony of his participation in procuring plaintiff's apprehension and arraignment, the sufficiency of which constitutes the only ground upon which he is chargeable.

Stated as strongly as it possibly can be in favor of the plaintiff, this testimony clearly is insufficient to...