McNair v. Erwin et als.

• Decision Date: 20 May 1919
• Citation: 84 W.Va. 250
• Court: West Virginia Supreme Court
• Parties: McNair v. Erwin et als.

84 W.Va. 250

McNair

v.Erwin et als.

Supreme Court of Appeals of West Virginia.

Submitted May 13, 1919.

Decided May 20, 1919.

1. Malicious Prosecution Recovery Malice Probable Cause.

Before a recovery may be had in an action for malicious prosecution both malice and want of probable cause on the part of the one instituting or instigating the prosecution must be established The absence of either is fatal to a recovery. (p. 251).

2. Same "Legal Malice" Compelling Return of Property.

By " legal malice," as applied in actions for malicious prosecution, is meant any sinister or improper motive other than a desire to punish the party alleged to have committed the offense. "Where the chief purpose in instituting the criminal proceeding is by such means to compel the return of property claimed by the prosecutor, it is malicious. (p. 252).

3. Same Motive Evidence.

A doubtful and inconclusive statement of the prosecutor, vaguely testified to by the officer making the arrest, regarding its probable effect in compelling restitution of property wrongfully obtained is, without more, insufficient to warrant the inference that restitution, not the desire to punish, was the prime incentive for instituting the proceedings. (p. 252).

4. Same Public Policy Presumption Probable Cause.

The public policy favors prosecution for crimes and requires the protection of a person who in good faith and upon reasonable grounds institutes proceedings upon a criminal charge. The legal presumption is that every prosecution for crime is founded upon probable cause and is instituted for the purpose of justice, (p. 253).

5. Same Want of Prooable Cause Discharge on Preliminary Hearing.

The discharge by a justice of the peace upon the preliminary hearing of one charged with the commission of a crime is prima facie evidence of want of probable cause, but it may be rebutted by proof showing the existence of such cause. The rule is otherwise, however, where the accused is acquitted after a trial, (p. 253).

6. Same Malice Evidence.

To defeat recovery in an action for malicious prosecution it is competent to prove conversations between plaintiff and defendants or any of them tending to show their joint and mutual interest in the formation and promotion of a business enterprise for their joint benefit, and like admissions by him to others not so associated relative to the same matter, where the transaction connected therewith was the basis of the criminal charge preferred against him. (p. 254).

Error to Circuit Court, Kanawha County.

Action for malicious prosecution by Xen McNair against J. E. Erwin and others. Judgment for plaintiff, and defendants bring error. Reversed and remanded.

Lynn & Byrne, for plaintiffs in error.

J. Howard Hundley and B. J. Pettigrew, for defendant in error.

Lynch, Judge:

The judgment reviewed for error plaintiff recovered in an action for malicious prosecution. The cause of complaint is the giving of plaintiff's instruction, the refusal of defendants' instructions Nos. 8 and 9, the modification of their instruction No. 7, and the rejection of certain evidence offered by them to sustain the issue in their behalf.

Defendants procured from a justice of the peace of Kanawha County a warrant charging plaintiff with fraudulently obtaining from them $1300 by falsely pretending that he paid for property purchased by him for his and their joint benefit, profit and advantage $3300, when he paid therefor only $2000. Though somlewhat conflicting and inconclusive, the evidence tends. strongly to support the contention of defendants, as they argue, rather than that of plaintiff, that he acted as the agent of all of them in the procurement of a coal mining lease covering land located in Kanawha County, the land then being operated under the terms of the lease. Plaintiff did pay only $2000 for the lease and induced the operating lessees to assign it to him, and he reassigned it to himself and defendants jointly. Each of them, defendants say, was to pay equal parts of the consideration and have an equal interest in the profits to be derived from the prosecution of the mining operations. Defendants furnished and delivered to plaintiff the $3300, the payment of which he induced them to believe represented the amount paid by him to his assignors for the lease, and out of which he actually paid them only $2000 therefor pursuant to the agreement between him and them. Having been discharged upon the preliminary examination before the justice, plaintiff brought this action and prosecuted it to final judgment for $1000 against defendants.

This brief outline of the testimony suffices to comprehend the discussion and decision of the several assignments presented and advocated by plaintiffs in error, defendants below. The only instruction proposed by plaintiff and given, though in part correct in principle, contains a provision or clause not supported, we think, by proof sufficient to warrant its inclusion in the instructions as an element of the right to recover in the action. The objectionable clause informed the jury of their right to award damages against defendants if they believed from the evidence that defendants, without probable cause to believe the plaintiff guilty of a felony and ''for the purpose of compelling plaintiff to pay them or either of them any sum of money, instituted criminal proceedings against the plaintiff" etc. The want of probable cause as an element of the recovery was submitted properly to the jury, but unless founded upon satisfactory proof it was error to include in the instruction as an additional element defendants' motives in instituting the criminal proceeding. Two matters are essential in every action based on malicious prosecution, malice and want of probable cause. Malice alone or want of probable cause is insufficient as a ground for the action. Vinal v. Core, 18 W. Va. 1. The failure to aver and prove both will defeat the action. They are essential ingredients of a recovery for malicious prosecution. The descriptive purpose of the action clearly imports the necessity for malicious motive and purpose prompting the criminal proceeding that forms the basis of the action, and "to warrant recovery, in such an action the plaintiff must establish both malice and lack of probable cause." Bailey v. Gollehon, 76 W. Va. 322; Sudnich v. Kohn, 81 W. Va. 492.

The manifest object in including the statement regarding motives was to serve as the basis of an inference of a design on the part of the defendants to use the criminal proceeding as an agency through which to compel plaintiff to refund the money fraudulently obtained from them; in other words, that the prosecution was prompted by unjustifiable motives; in short, was malicious. In order that malice may be inferred from the want of probable cause the circumstances proved must warrant the implication. Southern By. Co. v. Mosby, 112 Va. 169. The contrary of the principle first stated in the Virginia case is asserted in Bailey v. Gollehon, cited: "If there was probable cause, the existence of express malice is immaterial.'' That is, if probable cause existed for the criminal prosecution, it is not material if it was inspired by an inducement other than for the public good. The only testimony tending in any degree whatever to justify the inclusion of the clause in the instruction is the statement of the witness Martin who arrested plaintiff: "Well, he (defendant Boykin)...