Roughton v. Jackson
| Decision Date | 25 November 1952 |
| Docket Number | 4 Div. 223 |
| Citation | 64 So.2d 112,37 Ala.App. 17 |
| Parties | ROUGHTON v. JACKSON. |
| Court | Alabama Court of Appeals |
Baldwin & Baldwin, Andalusia, for appellant.
A. R. Powell, Jr., Andalusia, for appellee.
This cause was submitted to the jury on a count of the complaint claiming damages for malicious prosecution. The verdict was in favor of the plaintiff.
It appears without dispute in the evidence that the appellee and his wife executed a chattel mortgage to secure a loan of $88.50 from the Commercial Bank of Andalusia, Alabama. The appellant endorsed the note. Some payments were made by the appellee, but finally the appellant paid the balance due on the loan.
He then signed an affidavit for a warrant of arrest charging the appellee with obtaining money under false pretense. The arrest followed, and the appellee was committed to jail where he remained until an appearance bond was approved about twenty-four hours later.
When the trial came on to be heard before the justice of the peace, the appellant did not appear. The justice made this docket entry: 'This day this cause was dismissed for the like of prostacution.'
During the trial of the case at bar the appellant introduced evidence tending to establish that the general reputation of the appellee was bad. The trial judge permitted the proof, but limited its materiality to the sole question of mitigation of damage and so instructed the jury.
In this respect the court was in error, because such proof is admissible also on the issue of probable cause vel non. Key v. Dozier, 252 Ala. 631, 42 So.2d 254.
If the evidence relating to the issue of probable cause is not in dispute, this question becomes a matter of law for the determination of the court. Key v. Dozier, supra; Elliott v. Caheen Bros., 228 Ala. 432, 153 So. 613; Molton Realty Co. v. Murchison, 212 Ala. 561, 103 So. 651; Brackin v. Reynolds, 239 Ala. 419, 194 So. 876.
In the instant case the proof pertaining to the matter of probable cause was not in dispute.
As we have indicated, the loan was made from the bank with appellant's endorsement. There is no evidence that appellee made any false representation to either the bank or the appellant in order to secure the loan.
It appears that it was a customary transaction where a party makes a loan at a bank with the endorsement of another person.
Our approach to the review of the question is guided by the rule which provides that the appellant must not only show error by the record on appeal but he must also establish that such error probably injuriously affected his substantial rights. Roubicek v. Roubicek, 246 Ala. 442, 21 So.2d 244; Pacific Fire Ins. Co. v. Overton, 256 Ala. 400, 55 So.2d 123; Tennessee Valley Sand & Gravel Co. v. Pilling, 35 Ala.App 237, 47 So.2d 236; Ross Neely Motor Express v. Robinson, 35 Ala.App. 431, 48 So.2d 252.
The application of this rule forces the conclusion that the error of the trial judge should not cause a reversal of the judgment below. Supreme Court Rule 45, Code 1940, Tit. 7, Appendix.
In the case of O'Neal v. McKinna, 116 Ala. 606, 22 So. 905, 907, the court concluded from the undisputed evidence that there was no probable cause for believing the plaintiff was guilty of the offense of obtaining goods by false pretense. Therefore it was held that the following written instructions were properly given: '(a) 'The malice necessary to maintain an action for a malicious prosecution or for false imprisonment may be inferred from a want of probable cause for believing defendant guilty.'' '(b) 'There is no proof in this case that plaintiff was guilty of the charge of obtaining goods under false pretenses.''
Assignments of error numbered 6, 7, and 8 are argued jointly in appellant's brief. We will respond to assignment number 6. Bankers Fire & Marine Ins. Co. v. Draper, 245 Ala. 653, 18 So.2d 409; Gramling v. Davis, 32 Ala.App. 298, 25 So.2d 393.
The appellant's attorney propounded this question to an officer of the lendor bank: 'Would you have loaned the money to the principal of this note, Mr. and Mrs. T. D. Jackson if O. G. Roughton had not endorsed it?' The court sustained objections to this query.
This related to an immaterial inquiry. The question did not seek to elicit any information which would have shed light on the factual issues in the case, nor did it conduce to the proof of a pertinent hypothesis. Southern R. Co. v. Montgomery, 229 Ala. 456, 157 So. 854; Martin v. State, 16 Ala.App. 406, 78 So. 322.
In the course of the trial proceedings the judge made this statement:
The appellant insists that his motion for a mistrial should have been granted on account of the statement above quoted.
The court's assertion came immediately after exceptions were reserved to his reference to the law relating to the effect of obtaining 'an endorsement of another by fraud.'
We are clear to the conclusion that we should not reverse the judgment below on account of the denial of the motion for a mistrial. Woodard v. State, 253 Ala. 259, 44 So.2d 241; Selvage v. State, 29 Ala.App. 371, 196 So. 163.
The instant question is raised by assignment of error numbered 9. Assignment No. 10 is jointly argued therewith.
The court in his oral charge instructed the jury in effect that the plaintiff made out a prima facie case of want of probable cause when he proved that the criminal proceedings instituted by the appellant were dismissed. This is the law. Hanchey v. Brunson, 175 Ala. 236, 56 So. 971; Stouts Mountain Coal Co. v. Grubb, 217 Ala. 274, 116 So. 156; Caldwell v. Standard Oil Co., 220 Ala. 227, 124 So. 512.
Charge No. 3, refused to appellant, was substantially covered by the court's oral charge. Title 7, Sec. 273, Code 1940; Alabama Dry Dock & Shipbuilding Co. v. Bates, 33 Ala.App. 81, 30 So.2d 273.
It may be...
To continue reading
Request your trial
-
Hanson v. Couch
...in this case consisted of a film which was viewed, the question of probable cause is to be determined by the Court. "Roughton v. Jackson, 33 (37) Ala.App. 17 (64 So.2d 112). The Court so determines there was probable cause from viewing the "It is ORDERED that said motion of defendants be, a......
-
Kroger Co. v. Puckett
...the party is dismissed from court, and thereby terminated so far as that particular prosecution is concerned. See Roughton v. Jackson, 37 Ala.App. 17, 64 So.2d 112. Furthermore, the rule permitting a malicious prosecution action if there has been a termination of the particular prosecution ......
-
Chatman v. Pizitz, Inc.
...prosecution and is a sufficient termination thereof to authorize accused to sue for malicious prosecution." Cf. Roughton v. Jackson, 37 Ala.App. 17, 64 So.2d 112 (1952), cert. denied, 258 Ala. 579, 64 So.2d 115 We agree with Melton and Lynn and hold that a nolle prosequi of the charge is a ......
-
Givens v. Rent-A-Center, Inc.
...of the plaintiff. Although a nolle pross may sometimes support a prima facie claim for malicious prosecution, see Roughton v. Jackson, 37 Ala.App. 17, 64 So.2d 112 (1952), said prima facie case may be overcome by a showing that the dismissal of the criminal charge was a component element of......