Show v. Mount Vernon Farm Dairy Products
| Decision Date | 12 March 1946 |
| Docket Number | 9775. |
| Parties | SHOW v. MOUNT VERNON FARM DAIRY PRODUCTS, Inc. |
| Court | West Virginia Supreme Court |
Syllabus by the Court.
1. 'In a second trial of a civil case, the preserved testimony of a witness in the first trial is admissible on proof that he has since left the state and his attendance cannot conveniently be produced.' Pt. 15 Syl., Browning v. Hoffman, 90 W.Va. 568, 111 S.E 492.
2. In a trial for malicious prosecution against a defendant corporation it is reversible error for the trial court, over defendant's specific objection, to admit in evidence a letter written by plaintiff and directed to defendant's president, which supports plaintiff's theory of the case and contains many self-serving statements which would tend to prejudice the jury in plaintiff's favor.
3. In a law action it is improper for the trial court, over defendant's objection, to admit in evidence an affidavit filed at a former trial of the action, which states the amount of the jury verdict rendered at such former trial; but such error is cured where the defendant does not ask for a mistrial and the trial court promptly instructs the jury to disregard the happenings at the former trial and the verdict of the jury, in whose favor it was rendered, or the amount of the verdict.
4. 'Where [in a trial by jury] there is competent evidence tending to support a pertinent theory in the case, it is the duty of the trial court to give an instruction presenting such theory when requested so to do.' State v Alie, 82 W.Va. 601, Pt. 7, Syl., 96 S.E. 1011; State v. Foley, 35 S.E.2d 854, Pt. 3, Syl., not yet reported [in State Reports].
5. In an action for malicious prosecution it is not error for the trial court to refuse an instruction advising the jury as to the elements of damages which plaintiff claims were incurred prior to the actual institution of the criminal prosecution upon which the action for malicious prosecution is based.
6. In an action at law an affidavit of counsel based upon after-discovered evidence made and presented to the trial court subsequently to the dates of the judgment and order certifying the bill of exceptions is not a part of the record on writ of error to this Court.
Lilly & Lilly, A. A. Lilly, R. G. Lilly, and M. E. Boiarsky, all of Charleston, for plaintiff in error.
B. J. Pettigrew, Wilson Anderson, Sam D. Lopinsky, and Charles Anderson, all of Charleston, for defendant in error.
Charles O. Show instituted this action at law in the Circuit Court of Kanawha County against Mount Vernon Farm Dairy Products, Inc., a corporation, to recover damages for alleged malicious prosecution. A trial was had in the circuit court at the May, 1941, term, resulting in a verdict and judgment for plaintiff in the amount of $10,000. Upon writ of error to this Court the judgment of the circuit court was reversed, the verdict set aside, and a new trial awarded. Show v. Mount Vernon Farm Dairy Products, Inc., 125 W.Va. 116, 23 S.E.2d 68. A second trial, had at the January, 1943, term of the circuit court resulted in a hung jury, and again there was a hung jury on the third trial of the case, had at the September, 1943, term of the circuit court. The instant writ of error is prosecuted to a judgment of the circuit court in plaintiff's favor in the amount of $9,400, based upon a jury verdict rendered in the fourth trial of the case at the September, 1944, term of the circuit court.
Defendant corporation was engaged in the business of selling and distributing milk and milk products, and operated a number of routes in and about the City of Charleston. On or before March 24, 1938, plaintiff was employed by defendant as its route manager, and had general charge of defendant's employees who operated defendant's milk routes, among whom was one Clark Deaver. On March 24, 1938, for reasons which apparently have no connection with this action, plaintiff was discharged and on the following day Clark Deaver voluntarily terminated his employment with defendant. Thereafter Show and Deaver were jointly engaged in the milk business in Charleston. A routine audit was made of defendant's books, which created a suspicion that there was a shortage in its accounts. A further investigation led to the belief on defendant's part that its employee, Deaver, had failed to account for moneys collected on his route, whereupon Deaver was called to the office of defendant's general manager, E. E. Bowyer, where Bowyer in the presence of another employee, Raymond Stewart, advised Deaver that his account was short. At first the latter denied there was any shortage, but later during the conversation he admitted that he was short in his account to the extent of $250.
Deaver was not present at the instant trial, but according to the transcript of his testimony given at the third trial, and read in evidence at the instant trial over defendant's objection, at the conference which witness had with Bowyer, at which Stewart, one of defendant's employees was present, the former asked Deaver 'Why take all the blame?' but neither Bowyer nor Stewart told Deaver to implicate Show. However, on direct examination Deaver testified that Bowyer asked witness . Both Bowyer and Stewart deny this. Bowyer and Deaver then went to the office of a Charleston lawyer, where Deaver made an affidavit which implicated Show in the embezzlement resulting in the alleged shortage. This affidavit contains statements to the effect that plaintiff had instructed the affiant how the shortages could be concealed, and stated that the peculations covered a period of eight months to one year, and that about three-fourths of the money withheld was paid to Show. This affidavit was introduced in evidence over defendant's objection. Deaver's testimony that he made the affidavit because he was promised immunity is denied by Bowyer, Stewart and the Charleston attorney who prepared the affidavit. Staige Davis, the assistant prosecuting attorney who presented the indictment to the grand jury, and two members of the grand jury, testified that nothing was said in the grand jury room to the effect that Deaver was to be immune from indictment and prosecution. Deaver was indicted later, and pleaded guilty.
Following the making of this affidavit, defendant caused a complete audit of its books to be made, which disclosed that the actual shortage on Deaver's route was $1,108.40. The audit also developed shortages in other routes operated by defendant's employees, Eads and Kidd. Subsequent to the completion of this audit in August, 1938, the full amount of the shortage attributed to Deaver was collected from the surety company which had bonded both Show and Deaver. A representative of the surety company discussed the matter with the Assistant Prosecuting Attorney of Kanawha County, who got in touch with defendant's auditor and Bowyer, and as a result of that discussion the Deaver affidavit and other papers were turned over to the prosecuting attorney's office. At the April, 1939, term of the Intermediate Court of Kanawha County the matter was presented to the grand jury, which returned a joint indictment against Show, Eads and Kidd, separate indictments against Eads and plaintiff, and a 'not a true bill' as to the charges against Deaver. Bowyer and defendant's auditor both appeared before the grand jury in answer to summons and testified. The cases were then placed upon the docket of the Intermediate Court. Plaintiff employed counsel. Terms of the Intermediate Court were held in June and September, 1939, and January, 1940, at each of which plaintiff appeared, but no action was taken on the indictments. All of the indictments were dismissed at the April, 1940, term, upon motion of the prosecuting attorney. Defendant evidently took no part in these dismissals. Early in 1940 Deaver repudiated his affidavit, and testified for plaintiff at the first three trials.
Plaintiff's theory on the instant trial, as on the former trial which came here on writ of error, is that Bowyer as defendant's representative, acting within the scope of his employment, fraudulently induced Deaver to make a false affidavit, implicating plaintiff with Deaver, and that the affidavit was used as a basis for the indictment against plaintiff.
At the instant trial the testimony given by Clark Deaver on the third trial of this action was read to the jury. At the time of this trial Deaver was employed in the City of Philadelphia, but the case was set for trial at plaintiff's instance, and six days before the trial date, plaintiff's counsel wired to Deaver, requesting that he come to Charleston to appear as a witness for plaintiff, as he had done on the former trials, and offering to pay his expenses. Two days before the trial Deaver replied, stating that he could not come to Charleston on 'account working conditions'. Defendant objected to the reading of Deaver's testimony, but the trial court overruled the objection with the observation that if the transcript had not been made, he would have required that plaintiff take Deaver's deposition.
The trial court admitted a carbon copy of a letter dated March 17, 1939, which plaintiff says he addressed to H. E. Shadle, the president of defendant company, which letter reads as follows:
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