McMullen v. Daniel, 6 Div. 252.

• Court: Supreme Court of Alabama
• Writing for the Court: FOSTER, Justice. FOSTER, Justice. FOSTER, Justice.
• Citation: 155 So. 687,229 Ala. 194
• Parties: McMULLEN et al. v. DANIEL.
• Docket Number: 6 Div. 252.
• Decision Date: 03 November 1933

155 So. 687

229 Ala. 194

McMULLEN et al.
v.
DANIEL.

6 Div. 252.

Supreme Court of Alabama

November 3, 1933

Rehearing Granted March 15, 1934.

Further Rehearing Denied June 28, 1934.

Appeal from Circuit Court, Jefferson County; Richard V. Evans, Judge.

Action for malicious prosecution by Stark L. Daniel against Charles McMullen and the United States Fidelity & Guaranty Company. From a judgment for plaintiff, defendants appeal.

Affirmed on condition on rehearing. [155 So. 689]

Wilkinson, Burton & Wilkinson, of Birmingham, for appellant McMullen.

Coleman, Spain, Stewart & Davies, of Birmingham, for appellant United States Fidelity & Guaranty Co.

Harsh, Harsh & Hare, of Birmingham, for appellee.

FOSTER, Justice.

This is an action for malicious prosecution. In it the burden is on plaintiff to show a want of probable cause. In such a suit, when the prosecution is for a criminal charge, the innocence in fact of plaintiff is not evidence of such want of probable cause, unless defendant knew of the facts or that there was no crime committed by plaintiff when he began the prosecution. Gulsby v. Louisville & N. R. Co., 167 Ala. 122, 52 So. 392; Hanchey v. Brunson, 175 Ala. 236, 56 So. 971, Ann. Cas. 1914C, 804; Veid v. Roberts, 200 Ala. 576, 76 So. 934; Parisian Co. v. Williams, 203 Ala. 378, 83 So. 122; American Surety Co. v. Pryor, 211 Ala. 114, 99 So. 636; Sims v. Kent, 221 Ala. 589, 130 So. 213.

In Gulsby v. Louisville & N. R. Co., supra, it is said that a return of "no property found" on a search warrant for stolen property "establishes prima facie that the property was not in plaintiff's possession, and that he did not steal or conceal it." But that case did not hold that such return was prima facie proof of a want of probable cause. The fact that the goods were not in his possession, and that he did not steal or conceal them, only goes to guilt as a fact, and, without more, is not evidence of the nature of the information the officer had when he swore out the warrant. It is now well settled by the cases above cited that his innocence in fact is not evidence of want of probable cause. On that principle it has been held that an acquittal on final trial does not tend to show want of probable cause, though a discharge by a committing magistrate does have that effect. Stouts Mt. Coal Co. v. Grubb, 217 Ala. 274, 116 So. 156; Standard Oil Co. v. Davis, 208 Ala. 565, 94 So. 754.

It is also well settled that, if the facts are undisputed, probable cause is a question of law for the court. Molton Realty Co. v. Murchison, 212 Ala. 561, 103 So. 651; Am. Ry. Exp. Co. v. Summers, 208 Ala. 533, 94 So. 737; McLeod v. McLeod, 75 Ala. 483, and cases above cited.

The plaintiff in this case did not offer any proof of a want of probable cause, and, if the trial had then terminated, and defendant had requested the affirmative charge, it should have been given. But, rather than do so, and without a termination of the trial, defendant moved to exclude all the evidence. We have never changed our holding that a denial of such a motion is not in any case reversible error, Oliver's Garage v. Lowe, 212 Ala. 602, 103 So. 586; Stouts Mt. Coal Co. v. Grubb, 217 Ala. 274, 116 So. 156, though we have held that the court will not be reversed for granting it, when plaintiff has not made out a prima facie case, Dorough v. Alabama Great Southern R. Co., 221 Ala. 305, 128 So. 602.

Defendant's evidence showed without conflict that another deputy sheriff, one Bishop, who appears also to have been a minister, advised him that one who occupied a part of the same house where plaintiff lived, and whose name was Lockhart, told him, in substance, that the place was under the control of Dan Daniel (plaintiff's name is Stark Daniel; and there was in fact no such person as Dan Daniel), and that liquor was being handled there and he wanted it looked into. It appears without dispute that Lockhart did so inform Bishop. It is not shown that defendant [155 So. 690] had information to the contrary or reason to doubt the truth of what Lockhart had said. He thereupon made an affidavit, and on it a search warrant was issued and executed, but no liquor was found.

Appellant contends that upon such undisputed evidence his requested affirmative charge should have been given, on account of the failure of the evidence to show want of probable cause. In this contention we agree. Jordan v. Alabama Great Southern R. Co., 81 Ala. 220, 8 So. 191; Louisville & N. R. Co. v. Stephenson, 6 Ala. App. 578, 60 So. 490.

But for the benefit of another trial in the event plaintiff is able to make out a prima facie case of want of probable cause other questions should be considered by us, such as counsel argue.

The complaint avers that the warrant was against plaintiff, though the latter recites that it is against Dan Daniel. But, if the jury find, as they could from the evidence, that it was the plaintiff's premises described in the affidavit and warrant, and that he lived there, and there was no Dan Daniel in that connection, they could find that plaintiff was referred to, though the name was given as "Dan" and not "Stark." Defendant was not due the affirmative charge on that contention.

We have thus far discussed questions available to both appellants, but appellant United States Fidelity & Guaranty Company, the surety on the bond of McMullen as deputy sheriff, has assigned errors which need further consideration. Some of them have been reconsidered by us in Barrett v. Gilbert, 148 So. 801. We need not here repeat what was there again declared.

The bond recited that McMullen had been appointed deputy sheriff for a term of four years from June 16, 1928, and was conditioned for the faithful performance and discharge of all the duties of said office during his continuance therein. He had been appointed by Sheriff Hartsfield under the act of August 2, 1923, page 93. The sheriff was given thereby the right to select and discharge his deputies, and they were required to make bond conditioned as the bond of the sheriff. The sheriff was not liable for the ordinary official acts of the deputy unless he participated in them. Sheriff Hartsfield had died before McMullen swore out and executed the search warrant in this case, but he had been reappointed by his successor for the balance of the term for which Hartsfield was elected. The bond executed by the United States Fidelity & Guaranty Company was made to...