Peerson v. Ashcraft Cotton Mills

• Decision Date: 20 December 1917
• Docket Number: 8 Div. 29
• Citation: 78 So. 204,201 Ala. 348
• Parties: PEERSON v. ASHCRAFT COTTON MILLS et al.
• Court: Alabama Supreme Court

78 So. 204

201 Ala. 348

PEERSON v. ASHCRAFT COTTON MILLS et al.

8 Div. 29

Supreme Court of Alabama

December 20, 1917

Rehearing Denied March 23, 1918

Appeal from Circuit Court, Lauderdale County; C.P. Almon, Judge.

Action by J.M. Peerson against the Ashcraft Cotton Mills and others. From a judgment for defendants, plaintiff appeals. Reversed and remanded.

Anderson C.J., and McClellan and Mayfield, JJ., dissenting.

A.A Williams, of Florence, for appellant.

Ashcraft & Bradshaw and Mitchell & Hughston, all of Florence, for appellees.

SAYRE J.

The sole question raised in argument on this appeal is whether in the absence of an arrest of his person or a seizure of his property, the successful defendant may have an action against the plaintiff who has proceeded against him to his damage in a civil action maliciously and without probable cause. So far as we are advised, this question has never arisen for decision in this court. It has, however, been much debated and differently decided in other jurisdictions. We think it enough to briefly indicate the reason and authority for our conclusion that the question at issue should be answered in the affirmative.

The legislative history of this question--and it is an ancient one--is stated in Lehigh Valley R.R. Co. v. McFarland, 44 N.J. Law, 674. At the ancient common law an action for the malicious prosecution without probable cause of a mere civil action would lie. Kolka v. Jones, 6 N.D. 461, 71 N.W. 558, 66 Am.St.Rep. 615, where the authorities are cited. It has been supposed in England and in some of our states that the statute of Marlbridge, 52 Hen. III, c. 6, anno 1267, denied the right of action in such cases, and so established for the courts of this country the common law to the effect that the award of costs to a successful defendant is in lieu of all damages; but, as shown by Corliss, C.J., in Kolka v. Jones, supra, the statute referred to gave to the successful defendant in a civil action maliciously prosecuted not merely his costs, but also his damages, thus conferring upon him a summary remedy in such case, instead of compelling him to seek redress in an independent action. "The effect of the statute," as stated in 19 Am. & Eng.Ency. 652, "was therefore to supersede the subsequent action for the malicious prosecution of a civil suit, unless there was a wrongful arrest of the person, or seizure of property, or other special injury which would not necessarily result in all suits prosecuted to recover for like causes." There is a wide and obvious difference between such legislation and the statutory enactments of this country, and the learned Chief Justice has observed in the case supra "that our meager bill of costs was intended to recompense the victim of the malicious prosecution of a civil suit is, to our minds, unthinkable."

It is to be conceded that formerly the numerical preponderance of authority in this country lay on the side of the negative of the question under consideration. But, it seems, the majority of the courts have come around to the other view. Many of the decisions pro and con are cited in Kolka v. Jones, supra. Many cases are also cited in the note to McCormick Harvesting Co. v. Willan, 93 Am.St.Rep. 449, 467, 468, where the editor, Judge Freeman, says:

"Perhaps it may be safe to state that the weight of authority sustains the rule, that for a malicious prosecution of a civil action without probable cause, to the injury of the defendant therein, the plaintiff is answerable to him, though the latter was not arrested nor his property or rights therein interfered with in any manner."

The learned editor announces his belief that this is the better rule and the one which ought to be maintained in this country. Still another list of cases supporting the action is found in the note to Luby v. Bennett, 87 Am.St.Rep. 897.

Several arguments are advanced against the right of action in such cases: (1) The successful defendant is fully compensated by the award of costs. As to this point we concur in the statement of Corliss, C.J., quoted above. It seems quite plain that a judgment for costs under our statutes cannot compensate for the necessary and reasonable expenses of the defense to which the defendant may be put, nor make good an injury to reputation suffered by reason of the plaintiff's malicious allegations. (2) The courts should be open to litigants who ought not to be deterred from the assertion of their honest claims by the fear of retaliatory suits for damages in the event of a failure. But we lay down a rule for cases in which civil actions have been prosecuted maliciously and without probable cause. No policy of the law encourages suits of that character. (3) On the other hand, it is said that under the rule we have approved suit may follow suit in interminable succession, and there ought to be an end of litigation. The principle of this argument is refuted by the law's declaration that for every wrong there is a remedy, and especially is this so where the injury is malicious. As for practical results, the testimonies of the judges in other jurisdictions concur to the effect that this rule has brought to the courts no crowd of rashly importunate litigants.

A number of the courts and some very respectable text-writers hold otherwise. But our judgment, upon consideration of the authorities, may be expressed in the language of the text on the subject of malicious prosecution, 26 Cyc. 15, 16, written by Prof. Jaggard, as follows:

"The general American opinion *** is that costs in that [this] country, unlike the English costs, awarded per falsum clamorem, are not designed to and in fact do not amount to a remedy of compensation for the wrong so committed by the party who first put the law vexatiously in motion and who can be charged in malicious prosecution only after plaintiff in that action has faced the sufficient deterrent of the burden of proof as to the many elements of that tort. The prevailing rule is accordingly that the action may lie, although the original proceeding was begun by a civil summons only and the party seeking recovery was not arrested and his property was not seized, and he suffered no peculiar injury."

And the text-writer adds, with what logic or effect we need not now require, "but only when the want of probable cause is very palpable."

The complaint alleges special damages--and perhaps, in view of our statute awarding costs in every case, that was necessary--and the judgment of this court is that the demurrer should have been overruled.

The court is further of the opinion that the question discussed has been sufficiently raised by the assignments of error.

Reversed and remanded.

SOMERVILLE, GARDNER, and THOMAS, JJ., concur. ANDERSON, C.J., and McCLELLAN and MAYFIELD, JJ., dissent.

McCLELLAN J. (dissenting).

This is an action for damages instituted by the appellant against the appellees. The demurrer of the defendants being sustained, the plaintiff took a nonsuit because of the adverse ruling thus made.

Omitting only the formal parts, the single count of the complaint is in these words:

"That defendants, maliciously and without probable cause, and for the purpose of damaging and harassing plaintiff, procured a bill of complaint to be filed against plaintiff in the chancery court of Lauderdale county, Ala on the 8th day of March, 1912, the style of said cause being W.M. Gray, L.H. Springer, Tom Putnam, R.L. Springer, J.W. Gladney, Robert Killen, A.T. Davis, C.T. Wright and W.M. Neely, complaints, against J.M. Peerson, defendant. That defendants wrongfully, maliciously and without probable cause procured the issuance of process against this plaintiff as prayed for in said bill of complaint, requiring plaintiff to appear and answer said complaint. The defendants maliciously and without probable cause, and with intent to injure plaintiff, did hire, persuade or procure the said complaints in said bill of complaint to permit the defendant's attorneys to file said bill of complaint in their names against plaintiff, well knowing that said complainants had no cause of action against this plaintiff. That said attorneys, who in fact were the attorneys for defendants Ashcraft Cotton Mills and C.W. Ashcraft, but who appear in said bill of complaint as the solicitors for said W.M. Gray et al., falsely, maliciously and without probable cause alleged in said bill for complaint, among other things, that this defendant had defrauded the complainants therein and the other stockholders of the Lauderdale County Farmers' Union Warehouse Company out of their property and undertook therein to have the court cancel plaintiff's title to said property known as block 494 in Florence, Ala., on the ground of fraud. Plaintiff avers that at the time of the filing of said bill of complaint in said chancery court he was interested in a gin and oil business located on said block 494, which said business was in competition with the business being operated by the defendants herein, and that the purpose of defendants in procuring the filing of said bill of complaint and in the prosecution thereof in said chancery court was to destroy competition and to damage plaintiff in his business. That plaintiff was required to and did answer said complaint in said chancery court, and that said cause was duly submitted to the chancellor of said court, the Hon.

W.H. Simpson, and that said court on the 15th day of July, 1914, rendered a decree in said cause decreeing that the complainants therein were not entitled to relief and dismissing said bill of complaint. That in defending said pretended cause of action so maliciously begun and prosecuted plaintiff was compelled to and did employ counsel, and that the services rendered by his attorney

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