National Surety Co. v. Mabry

• Decision Date: 17 December 1903
• Parties: NATIONAL SURETY CO. v. MABRY.
• Court: Alabama Supreme Court

35 So. 698

139 Ala. 217

NATIONAL SURETY CO. v. MABRY.

Supreme Court of Alabama

December 17, 1903

Appeal from City Court of Jefferson; Chas. A. Senn, Judge.

Action by John S. Mabry against the National Surety Company. Judgment for plaintiff. Defendant appeals. Affirmed.

Charles H. Lord was introduced as a witness for the defendant, and testified that he occupied the position of inspector for the company in 1899, at the time the transaction involved in the suit occurred. He testified, among other things, that, as the representative of the defendant company, in reference to the alleged shortage of the plaintiff with the defendant, he consulted Walker Percy, Esq., an attorney of Birmingham, in reference to such matter, and that he consulted Mr. Percy before the institution of the transaction against the plaintiff, and that Mr. Percy advised him to have the matter brought to the attention of the grand jury. He further testified that he had talked at length with the plaintiff in reference to the alleged shortage. Mr. Lord was then asked the following question by the counsel for the defendant "Mr. Lord, I will ask you to state whether you stated to Mr. Percy what Mabry had stated to you denying his liability in this connection?" The plaintiff objected to this question, the court sustained the objection, and the defendant duly excepted. This ruling constitutes the basis of the fifth assignment of error. During the further examination of this witness he was asked the following question: "I will ask you, Mr. Lord, whether you stated to Mr. Percy that Mabry had told you that there were a number of items, making up this $267.00, which he had not collected, and which were improperly charged to him?" The plaintiff objected to this question, the court sustained the objection, and the defendant duly excepted. This ruling constitutes the basis of the seventh assignment of error. This witness was also asked the following question: "Do you remember whether you repeated to Mr. Percy what Mabry had said to you?" The plaintiff objected to this question, the court sustained the objection, and the defendant duly excepted. This ruling of the court constitutes the ninth assignment of error. The jury returned a verdict in favor of the plaintiff, assessing his damages at $7,500. The defendant moved the court to set aside the verdict of the jury and to grant it a new trial upon the following grounds: "(1) The verdict of the jury was excessive. (2) The verdict of the jury was contrary to, and not sufficiently supported by, the evidence." This motion was overruled, and the defendant duly excepted. The overruling of this motion constitutes the twelfth assignment of error.

Walker Percy, for appellant.

A. O Lane and Frank S. White, for appellee.

HARALSON J.

The first two counts in the complaint are for maliciously, and without probable cause therefor, causing the plaintiff, on or about the 15th of October 1899, to be arrested on a charge of embezzlement; and the last two, for the false imprisonment of the plaintiff on a charge of embezzlement.

The complaint is not questioned by demurrer, and the cause was tried on the plea of not guilty.

It appears, that the plaintiff was indicted at the December term, 1899, of the criminal court of Jefferson county for embezzlement, the specific charge being that he had embezzled $432.60, while acting as the agent of the Hammond Packing Company,--the defendant, the National Surety Company, having been the surety on his bond to the said Hammond Packing Company; that a capias was issued for the arrest of the plaintiff, and he was arrested thereon, and committed to jail by the sheriff of the county in default of bond, but was released a few hours afterwards on his succeeding in giving bond; that the plaintiff attended court for trial two or three times, and the prosecutor's attorney was there for the prosecution of the case, and one Lord, the defendant's agent, took an active part in the prosecution, and that after the case had been set down for trial two or three times, a nol pros. was entered by the defendant, and the plaintiff discharged. The plaintiff thereupon, on the 20th day of May, 1900, instituted this action for the recovery of damages for malicious prosecution and false imprisonment, and on trial of the cause, a judgment was rendered for the plaintiff against the defendant, for $7,500, to reverse which judgment the appeal is prosecuted by the defendant.

There were exceptions reserved by defendant to the rulings of the court, which were assigned as error, numbered from 1 to 12. In the written brief and argument filed, the defendant insists on only three of these,--the seventh, ninth and twelfth, the last being the overruling of the defendant's motion for a new trial. We confine ourselves to the assignment of errors which are here insisted on.

It may be regarded as well settled, that an action for malicious prosecution will not lie, unless it be shown by the plaintiff, among other things, that he was prosecuted through the agency of the defendant, not only maliciously, but without probable cause, and both of these must concur. McLeod v. McLeod, 73 Ala. 42; 2 Greenleaf's Evidence, 453.

Again it may be stated as settled, that it is a full defense to the action, that the prosecution was instituted on the advice of learned counsel, given on a full and fair statement by the prosecutor of all the facts known to him, or which by proper diligence he could have ascertained, even though the advice was erroneous, or was not warranted by the facts stated; but, if the prosecutor failed to disclose any material facts known to him, he will not be protected on the advice of counsel founded on a partial statement. Steed v. Knowles, 79 Ala. 446; Jordan v. A. G. S. R. R. Co., 81 Ala. 226, 8 So. 191; Baldwin v. Walker, 94 Ala. 514, 10 So. 391; Marks v. Hastings, 101 Ala. 173, 13 So. 297.

The chief contention made by defendant seems to be, that Lord, the agent of the defendant acted under the advice of counsel. In support of this contention, it is not denied, but admitted, that it was necessary to prove that Lord used proper diligence to ascertain all the material facts in the case, and fully and fairly laid before the attorney the facts known to him, of which he had information. In his examination as a witness to make out his defense for his company, it was proper and necessary for Lord to state what information he had laid before the attorney, so that the jury under all the evidence, might determine, whether he had submitted to the attorney all the facts known to him, or had made only a partial statement of them.

It appears that the Hammond Packing Company made out and sent to the defendant company an itemized statement of the shortages it claimed that the plaintiff sustained to it, which several amounts the said packing company claimed of defendant as the surety on plaintiff's bond. This statement, the defendant company placed in the hands of the plaintiff, as constituting the items of misappropriation by him, or, which it...