Proctor Coal Co. v. Moses

• Decision Date: 08 May 1897
• Parties: PROCTOR COAL CO. v. MOSES.
• Court: Kentucky Court of Appeals

40 S.W. 681

PROCTOR COAL CO. v. MOSES.

Court of Appeals of Kentucky.

May 8, 1897

Appeal from circuit court, Whitley county.

"Not to be officially reported."

Action by Elias Moses against the Proctor Coal Company for malicious prosecution. Judgment for plaintiff, and defendant appeals. Affirmed.

R. D Hill, for appellant.

John L Scott & Son and C. W. Lester, for appellee.

LEWIS C.J.

That H F. Finley, acting as agent, and one of the principal stockholders of the corporation styled the "Proctor Coal Company," now appealing, filed an affidavit upon which was based the charge and arrest of appellee for the crime of feloniously cutting and removing timber from a certain tract of land containing 50 acres, is not only proved, but substantially admitted. Furthermore, that an action brought by A. Gatliffe and others, including the same Finley immediate vendors of appellant, against appellee, involving their right to recover the same land and value of timber cut, was in obedience to a mandate of this court dismissed, is also shown by the record. To subsequently cause the arrest of appellee, involving imprisonment, in case bail was not given, upon charge of feloniously cutting and removing timber from that identical tract of land, was not only in fact and law malicious, but cruel and oppressive. It therefore was only needed for the grand jury to refuse to indict appellee for the crime charged, as was done at three consecutive terms of the circuit court, in order to fix liability of appellant for not only actual, but punitive, damages, for the malicious prosecution; and if the judgment rendered in pursuance of the verdict of the jury for $2,097.20 in damages (not, we think, excessive) be reversible at all, it certainly cannot be upon the merits of the case, but solely upon error of law accruing during the trial. It was not error to permit to be read as evidence the action of A. Gatliff and others against Elias Moses, because the fact was thereby made plain that, in a controversy between immediate vendors of appellants and appellee, the former had been adjudged not entitled to either recover of the latter possession of the land in question, or enjoin him from cutting and selling the timber thereon; and, that fact being established, the conclusion became inevitable that the false arrest and imprisonment was malicious and without probable cause.

Nor did the court err in instructing the jury that if the...