Palmer Ford, Inc. v. Wood

• Decision Date: 08 February 1984
• Docket Number: No. 22,22
• Citation: 298 Md. 484,471 A.2d 297
• Parties: PALMER FORD, INC. v. Franklin E. WOOD. Sept. Term 1983.
• Court: Maryland Court of Appeals

Page 484

298 Md. 484

471 A.2d 297

PALMER FORD, INC. v. Franklin E. WOOD.

No. 22 Sept. Term 1983.

Court of Appeals of Maryland.

Feb. 8, 1984.

Albert D. Brault, Rockville (Charles C. Bowie, Janet S. Zigler and Brault, Graham, Scott & Brault, Rockville, on the brief), for appellant.

Arthur M. Wagman, Rockville (Wagman & Moldawer, P.A., Rockville, on the brief), for appellee.

Argued Before MURPHY, C.J., and SMITH, ELDRIDGE, COLE, DAVIDSON, RODOWSKY and COUCH, JJ.

RODOWSKY, Judge.

Whether the defendant was entitled to a directed verdict is the issue presented in this malicious prosecution and abuse of process suit. With respect to the malicious prosecution claim the argument focuses on the legal sufficiency of the evidence to prove the absence of probable cause. As to that element of the tort the plaintiff's case rests entirely on the dismissal by a judge in the District Court of Maryland of all criminal charges against the plaintiff at hearings which, inferentially, were in the nature of preliminary hearings. The question presented here is whether the fact of that dismissal made the probable cause issue one to be decided by the jury when all of the other evidence in the civil case, directly proving the facts known to the defendant at the time criminal charges were initiated, is uncontradicted and would establish probable cause as a matter of law but for the possible effect to be given to the dismissal. Analysis of the malicious prosecution decisions of this Court dealing with the respective functions of judge and jury in the determination of probable cause where the evidence is conflicting on that issue reveals two seemingly contradictory lines of cases. One of these lines states the principle that it is the judge's function to decide whether the facts as found by the jury constitute a want of probable cause. Under the other line of cases the jury is said to make the ultimate determination whether or not the facts found by it constitute probable cause. This second line of cases has not distinguished the jury's more limited role in malicious prosecution actions from the function of the jury in negligence cases. If the dismissal in the instant matter is treated as evidence of a lack of probable cause sufficient to support a verdict for the plaintiff in the face of direct and otherwise uncontradicted evidence of probable cause, the ultimate determination of probable cause would be transferred from court to jury. Because this effect is contrary to the law of malicious prosecution, we shall reverse without a new trial on the malicious prosecution claim.

On the abuse of process claim we shall conclude that the defendant was not entitled to a directed verdict. There was sufficient evidence of the defendant's improper purpose in initiating the criminal prosecution and of willful misuse of the process, as a threat in the collection of a debt. A new trial on damages on this claim will be ordered.

Plaintiff in the trial court and respondent here is Franklin E. Wood (Wood or Plaintiff). In the early spring of 1977 Wood was a 20-year-old, part-time, college student who worked full-time in the evening. His parents were divorced and he lived with his mother. He was also the attentive owner of a 1970 Mustang convertible which was in need of major repairs. On April 3, 1977 Wood took the car for service to the petitioner, Palmer Ford, Inc. (Palmer Ford), the defendant in this civil litigation. Palmer Ford, in writing, estimated that the work which Wood initially requested would cost $400. Wood was prepared to pay this amount because he had obtained $400 from his father to have the Mustang repaired. On a nearly daily basis Wood went to the repair shop at Palmer Ford and watched the progress of the work. One of Palmer Ford's mechanics suggested that the car needed additional work, which Wood authorized, but Wood said he could not pay more than an additional $150, or $200 at the very most. No modified, written estimate was furnished.

When Wood was advised on April 11 that work on his car was completed, he went to Palmer Ford and was presented with a bill for $924. He was "shocked" and "outraged" and was unable to pay for the release of his car. At his place of employment that evening Wood received a telephone call from an individual who did not identify himself, but whom Wood identified at the civil trial as Danny Jones (Jones), a supervisory employee in the service department at Palmer Ford. ¹ The caller sympathized with Wood's financial predicament and offered to give Wood his car for $400. Wood hung up. The following day, April 12, Wood was back in the shop at Palmer Ford where he received another telephone call from the same person. Wood was told that if, at noon on the next day, Wood placed $400 under the trash can in the men's room adjacent to the new car showroom at Palmer Ford, he would find under the trash can the bills totaling $924, stamped "PAID," together with the keys to his car. Wood returned to Palmer Ford the next day, April 13. At noon he went to the men's room, found receipted bills for the work on his car and his car keys under the trash can, placed $400 in cash under the trash can, went to his car and drove it away.

A few days later Wood brought the car back to Palmer Ford in order to complain that the car's heater was overheating and that Palmer Ford should replace it. Wood was met in the service lane by Jones who told Wood that Palmer Ford was not responsible for the car in any way and that Wood was "to get the hell out of there." Wood left.

About one week after the April 13 exchange had been effected under the trash can, the clutch on Wood's Mustang "went out" and he had the car towed to Palmer Ford. That evening, or the next day, Wood was telephoned by John Kirby (Kirby), the comptroller of Palmer Ford. Kirby said that Palmer Ford had no record of having been paid by Wood for the $924 of repairs. Kirby wanted to know how Wood had gotten possession of the Mustang and asked Wood to come to Palmer Ford to discuss the matter. Wood told Kirby that Wood had paid for the repairs and had receipts. Nevertheless Wood met with Kirby in the latter's office at Palmer Ford the next day. Also present was Palmer Ford's service manager, Frederick L. Gilpin (Gilpin). Kirby at that time had the receipted bills. There was evidence that Gilpin had found the receipts in Wood's car after it had been towed to Palmer Ford. By the time of the meeting, charges for the towing and for work on the clutch had increased Wood's balance with Palmer Ford to $952.25. According to Wood, Kirby said that Palmer Ford was not interested in prosecuting and that, if Wood would tell Kirby everything that had happened, Palmer Ford would arrange some kind of a payment schedule. Wood told Kirby and Gilpin "the entire story." Kirby responded that he did not at that time know if Palmer Ford would deduct $400 from the bill or whether Wood would have to pay the entire balance. The next day Kirby telephoned Wood to say that the entire $952.25 would have to be paid. Under Wood's testimony, this conversation occurred about Friday or Saturday, April 22 or 23.

On Friday, April 22 Kirby dictated a letter, which was typed and dated April 25, 1977, to Wood's father, requesting him to meet with Kirby to discuss "the method used to obtain [Wood's] vehicle when the work was completed" at Palmer Ford. No meeting with Wood's father was held due to his illness. Kirby had also telephoned Wood's mother, Mrs. Marilyn Wood, to arrange a meeting with her. According to Mrs. Wood, that meeting took place sometime in the period April 23 to April 27, and certainly before April 28. Kirby said that Palmer Ford needed the money for the repairs to her son's car or her son would go to jail. Mrs. Wood told Kirby that she did not want her son arrested or going to jail, and that she would get the money by borrowing it from her credit union.

On April 26, 1977 Pfc. Marvin R. Marks (Marks) of the Prince George's County police was contacted by Kirby and asked to come to Palmer Ford. Marks had been investigating a January 1977 breaking and entry at Palmer Ford as well as some later incidents of theft from, and vandalizing of, automobiles stored on the fenced, back lot at Palmer Ford. Although Marks died prior to the trial in the case sub judice, his written reports concerning the Wood incident were admitted into evidence. These reflect that Kirby told Marks that Wood had placed $400 under the trash can in exchange for receipts and keys. The reports state that Kirby "indicat[ed] that he was in favor of prosecution."

Following his conversation with Kirby, Marks consulted with an Assistant State's Attorney for Prince George's County and was advised that the proper charge to be levied was embezzlement. On April 27, 1977 at 1:00 p.m. Marks arrested Wood. The statement of charges, signed and sworn to by Marks and dated April 27, charges embezzlement of $924 from Palmer Ford. At about 2:00 p.m. on April 27 Marks questioned Wood and obtained a signed statement, written in Wood's own hand, which again described the telephone calls and the exchange. In his statement Wood said that he did not recognize the voice of the caller but that he thought it was Jones because of certain behavior of Jones which was set forth in the statement.

The last day that Jones had reported for work at Palmer Ford was April 25. He returned to Palmer Ford on the morning of April 28 and said he had resigned. Kirby contacted Marks to advise that the "suspect" (Jones) was on the premises. Marks asked Jones to come to the police station for questioning. Jones denied any knowledge of the embezzlement. No charges have ever been brought against Jones in connection with the Wood incident.

On May 3, 1977 Mrs. Wood delivered to Kirby at Palmer Ford a check from her credit union in the amount of $952.25 and obtained a receipt specifying that the payment applied to the orders for work on the Mustang. Mrs. Wood...