Morton v. Chesapeake and Ohio Ry. Co., 19658

• Decision Date: 13 November 1990
• Docket Number: No. 19658,19658
• Citation: 399 S.E.2d 464,184 W.Va. 64
• Court: West Virginia Supreme Court
• Parties: John David MORTON v. The CHESAPEAKE AND OHIO RAILWAY COMPANY, a Virginia Corporation, and B.L. Wheeler.

Page 464

399 S.E.2d 464

184 W.Va. 64

John David MORTON v. The CHESAPEAKE AND OHIO RAILWAY COMPANY, a Virginia

Corporation, and B.L. Wheeler.

No. 19658.

Supreme Court of Appeals of

West Virginia.

Nov. 13, 1990.

Syllabus by the Court

1. " 'In an action for malicious prosecution, plaintiff must show: (1) that the prosecution was set on foot and conducted to its termination, resulting in plaintiff's discharge; (2) that it was caused or procured by defendant; (3) that it was without probable cause; and (4) that it was malicious. If plaintiff fails to prove any of these, he can not recover.' Radochio v. Katzen, 92 W.Va. 340, Pt. 1 Syl. [114 S.E. 746 (1922) ]." Syllabus Point 3, Truman v. Fidelity & Casualty Co. of New York, 146 W.Va. 707, 123 S.E.2d 59 (1961).

2. "To sustain an action of trespass on the case for malicious prosecution of either a civil suit, action or proceeding, or a criminal charge, there must be a showing, from a preponderance of the evidence, of both malice and want of probable cause in the prosecution complained of. Absence of a showing of either is fatal to the plaintiff's claim for recovery." Syllabus Point 2, Hunter v. Beckley Newspapers Corp., 129 W.Va. 302, 40 S.E.2d 332 (1946).

3. " 'Probable cause for instituting a prosecution is such a state of facts and circumstances known to the prosecutor personally or by information from others as would in the judgment of the court lead a man of ordinary caution, acting conscientiously, in the light of such facts and circumstances, to believe that the person charged is guilty.' Radochio v. Katzen, 92 W.Va. 340, Pt. 2 Syl. [114 S.E. 746 (1922) ]." Syllabus Point 5, Truman v. Fidelity & Casualty Co. of New York, 146 W.Va. 707, 123 S.E.2d 59 (1961).

4. "Where a master and a servant are sued jointly in an action for recovery of damages ... if the action is based solely on the alleged ... conduct of the servant, and he is, by a final judgment, acquitted of guilt of the ... conduct alleged as a basis for the action, there can be no recovery thereafter against the master on the basis of such alleged cause of action." Syllabus, in part, Willigerod v. Sharafabadi, 151 W.Va. 995, 158 S.E.2d 175 (1967).

Marc E. Williams, Huddleston, Bolen, Beatty, Porter & Copen, Huntington, for Chesapeake & Ohio Ry. Co., a Virginia Corp. and B.L. Wheeler.

Kevin Burgess, Hamilton & Mooney, Oak Hill, for John David Morton.

PER CURIAM:

This case involves an action for malicious prosecution instituted by John David Morton against the Chesapeake and Ohio Railway Company (currently known as CSX) and its employee, B.L. Wheeler. After the Circuit Court of Fayette County directed a verdict in favor of Mr. Wheeler, the jury returned a verdict against the railway and awarded Mr. Morton $15,000 in damages. The railway appealed to this Court. We reverse the circuit court because after Mr. Wheeler was dismissed, the circuit court should have dismissed the railway because the evidence was not sufficient to support a verdict against the railway.

On November 17, 1981, M.L. Trout, the railway's superintendent of police, was notified that railroad communication lines near McKendree, West Virginia were not operating. Two railway employees, Don Pennington and Paul Adkins, went to the McKendree area and found that the communication wire was missing. They reported to Mr. Trout that a green 1973 Pontiac, License Number 5N-7276, was parked alongside the track where the wire was missing and that one of the two men with the car had a green substance on his hands. Railroad communication wire, a non-insulated copper wire, can oxidate to leave a green residue. A car with the reported license number was found to belong to David Morton. Mr. Trout testified that in a telephone conversation on November 17, 1981, David Morton admitted that he and his brother John were by the river but denied stealing the wire. ¹ David Morton acknowledged that the car was his but maintained that he and "two other fellers [sic]" were parked by "an old trash dump drinking." David Morton denied mentioning his brother, John, and testified that "[t]here was never no names given [sic]."

Mr. Trout contacted Mr. Wheeler, the railway's special agent, who then confirmed with Mr. Pennington and Mr. Adkins that they saw two men "right where the wire was cut; that the wire was hanging down, and their vehicle was broken down." On December 7, 1981, based on this information, Mr. Wheeler sought arrest warrants for David Morton and his brother, John Morton. The warrants were issued by Magistrate Love who determined that probable cause existed based on the information that David and John Morton were seen where the wire was cut with a green substance on at least one of them.

Mr. Wheeler testified that shortly after his arrest David Morton said that John and he had been drinking by the river. David Morton denies making that statement and said that Mr. Wheeler was looking for his father, who is also named John, and not for his brother.

Before the preliminary hearing, scheduled for January 12, 1982, Mr. Wheeler spoke again with Mr. Pennington and Mr. Adkins who said that their earlier statement was a mistake and the car had been "approximately a mile from the area where the wire was cut." Because of change in information, Mr. Wheeler requested that charges against David and John Morton be dismissed. On January 12, 1982, the charges were dismissed without prejudice.

On November 18, 1982, John Morton filed suit against the railway and Mr. Wheeler alleging false arrest and malicious prosecution. During the trial John Morton dropped his false arrest claim and at the conclusion of John Morton's case, the circuit court directed a verdict in favor of Mr. Wheeler. After the railway presented testimony from Mr. Trout, the case against the railway went to the jury, who returned a verdict against the railway and awarded John Morton $15,000. The railway appealed to this Court alleging that a verdict should have also been directed in its favor.

I

The elements for malicious prosecution were specified in Syllabus Point 3, Truman v. Fidelity & Casualty Co. of New York, 146 W.Va. 707, 123 S.E.2d 59 (1961) as follows:

"In an action for malicious prosecution, plaintiff must show: (1) that the prosecution was set on foot and conducted to its termination, resulting in plaintiff's discharge; (2) that it was caused or procured by defendant; (3) that it was without probable cause; and (4) that it was malicious. If plaintiff fails to prove any of these, he can not recover." Radochio v. Katzen, 92 W.Va. 340, Pt. 1 Syl. .

See Preiser v. MacQueen, --- W.Va. ----, 352 S.E.2d 22, 24 (1985); Tritchler v. West Virginia Newspaper Publishing Co., Inc., 156 W.Va. 335, 340, 193 S.E.2d 146, 149 (1972).

In a case for malicious prosecution the plaintiff must demonstrate the elements by a preponderance of evidence. In Syllabus Point 2, Hunter v. Beckley Newspapers Corp., 129 W.Va. 302, 40 S.E.2d 332 (1946), we stated:

To sustain an action of trespass on the case for malicious prosecution of either a civil suit, action or proceeding, or a criminal charge, there must be a showing, from a preponderance of the evidence, of both malice and want of probable cause in the prosecution complained of. Absence of a showing of either is fatal to the plaintiff's claim for recovery.

Syllabus Point 1, Truman supra; Thomas v. Beckley Music and Electric Co., 146 W.Va. 764, 771, 123 S.E.2d 73, 79 (1961).

This high level of proof is required because:

"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." McNair v. Erwin, 84 W.Va. 250 [99 S.E. 454 (1919) ]. Staley v. Rife, 109 W.Va. 701, Pt. 1 Syl. [156 S.E. 113 (1930) ].

Syllabus Point 2, Truman supra.

In civil malicious prosecution actions, the issues of malice and probable cause become questions of law for the court where there is no conflict of evidence or where there is only one inference to be drawn by reasonable minds. Truman, Id. 146 W.Va. at 723-24, 123 S.E.2d at 70. Although malice may be inferred by a lack of probable cause, the question of the existence of probable cause depends on the defendant's honest belief of guilt on reasonable grounds. Id. In Syllabus Point 5, Truman, supra at 707, 123 S.E.2d at 59, we stated:

Probable cause for instituting a prosecution is such a state of facts and circumstances known to the prosecutor personally or by information from others as would in the judgment of the court lead a man of ordinary caution, acting conscientiously, in the light of such facts and circumstances, to believe that the person charged is guilty. Radochio v. Katzen, 92 W.Va. 340, Pt. 2 Syl. .

In the present case, the record indicates that at the time Mr. Wheeler sought the arrest warrants he had two witnesses who claimed to have seen...