Show v. Mount Vernon Farm Dairy Products

• Decision Date: 24 November 1942
• Docket Number: 9332.
• Parties: SHOW v. MOUNT VERNON FARM DAIRY PRODUCTS, Inc.
• Court: West Virginia Supreme Court

23 S.E.2d 68

125 W.Va. 116

SHOW v. MOUNT VERNON FARM DAIRY PRODUCTS, Inc.

No. 9332.

Supreme Court of Appeals of West Virginia.

November 24, 1942

Ritchie Hill & Thomas and H. D. Rollins, all of Charleston, for plaintiff in error.

B. J Pettigrew, of Charleston, for defendant in error.

FOX President.

Charles O. Show instituted his action at law in the Circuit Court of Kanawha County against the Mount Vernon Farm Dairy Products Inc., a corporation, seeking to recover damages for alleged malicious prosecution. A jury trial was had and a verdict returned in his favor against the defendant for the sum of $10,000. A motion made to set aside the verdict was overruled, and judgment entered thereon. To this action of the trial court, the defendant prosecutes this writ of error.

On and prior to the 24th day of March, 1938, the plaintiff was an employee of the defendant, his position being designated as route manager. Defendant was engaged in the business of selling and distributing milk and milk products, and operated a number of routes leading out from the City of Charleston. The plaintiff had general charge of other employees of the company who operated these routes, among whom was one Clark Deaver. On March 24, 1938, for reasons having no apparent connection with this action, the plaintiff was discharged; on the day following, Clark Deaver voluntarily terminated his employment with the defendant; and Show and Deaver, together then engaged for a time in the milk business. It appears that upon an audit of the defendant's books, suspicion was created as to whether there was a shortage in its accounts, and some further investigation led to the belief that Clark Deaver had failed to account for moneys collected on his route. On June 8, 1938, Deaver was called to the office of the defendant, and there had a

conversation with the defendant's general manager, E. E. Bowyer, partially at least, in the presence of another employee, Raymond Stewart. Bowyer, in the presence of Stewart, advised Deaver that his accounts were short. Deaver at first denied knowledge of any such shortage, but later admitted that he was short in his account to the extent of $250. Deaver, in his testimony on the trial of this action, makes the following statement: "Well, in June of 1938, I was called into the office of Mr. Bowyer at the Mount Vernon by Mr. Bowyer, that is the proprietor or the manager of the Mount Vernon Dairy Company, and he told me that I was short and I said--I admitted taking $250. I promised to pay it back if he would make it in easy payments because I did not have a job at that time. I also had just got up out of bed with typhoid fever and I could not work for some time, and so I told him I would pay it back, and I still will pay the $250 back, but at that time when he asked me about it he said, 'Why should you take all the blame of this money?' He said, 'I know you got it all but why should you take the blame?' and left the impression that I should--that Charlie could be brought in on it, and he and I talked it over in his office about the affidavit of Mr. Show, that I would implicate Mr. Show in it." He also testified: "I was told I wouldn't be prosecuted by Mr. Bowyer." Bowyer and Deaver then went to the office of an attorney, and Deaver made an affidavit, duly verified, implicating the plaintiff in the peculations which resulted in the shortage. In this affidavit he stated that the plaintiff had instructed him how to cover up his shortages, and that of the money of the defendant retained by him he paid to Show about three-fourths; that these peculations covered a period of from eight months to one year. At another point, he stated that Show got more than one-half of the money which he held out. It appears from the record that Deaver was under a bond in the penalty of three hundred dollars, and that the bond of the plaintiff was in the penalty of twelve hundred and fifty dollars. The theory of the plaintiff is that Deaver was induced by Bowyer to implicate the plaintiff, for the reason that the bond of Deaver was probably insufficient to cover the entire shortage, whereas, if Show was implicated therein, his bond was probably ample to cover the same. In reply to this suggestion, defendant contends that at the time the affidavit was taken there was nothing to indicate the amount of the shortage, or that Deaver's bond would not cover the same.

Following the taking of Deaver's affidavit, a further and complete audit of the company's books was made, the result of which was that the actual shortage growing out of Deaver's route was $1,108.40. Shortages on other routes operated by Eads and Kidd developed. This audit was completed in August, 1938, and subsequent thereto, in December, following, the full amount of the shortage on the Deaver route was collected from the surety company which had bonded both Show and Deaver. The evidence does not show that the defendant took any independent action with respect to the prosecution of either Show or Deaver. However, a representative of the surety company laid the matter before an assistant prosecuting attorney of Kanawha County, who then got in touch with the auditor and with Bowyer, and the Deaver affidavit and other papers were turned over to the prosecuting attorney's office. The matter was presented to the April term, 1939, grand jury of Kanawha County, and a joint indictment returned against Show, Eads and Kidd, separate indictments against Eads and the plaintiff, and a "not a true bill" as to Clark Deaver. Bowyer and the auditor for the defendant appeared before the grand jury in answer to a summons and testified, and Bowyer testified that he had not asked the grand jury to prosecute Deaver. The case was placed upon the docket of the Intermediate Court. There was a term of said court held in June and September, 1939, and January, 1940, at each of which terms the plaintiff appeared, and he had, in the meantime, employed counsel. At the April term, 1940, all of the indictments were dismissed on motion of the prosecuting attorney, but there is nothing in the record indicating that this action was taken at the instance of the defendant. On the contrary, the assistant prosecuting attorney testified that it had no part in the dismissals. It should here be stated that sometime early in 1941 Clark Deaver repudiated the affidavit made by him on June 8, 1938, and testified for the plaintiff in this action, as set out above. The theory of the plaintiff is that Bowyer, acting as general manager and representative of the defendant, and within the scope of his employment, fraudulently induced Clark Deaver to make a false affidavit, by which the plaintiff herein was implicated in Deaver's criminal conduct, and that the affidavit so obtained was later used to procure the finding of the indictment against the plaintiff.

The declaration contains the following averment: "That at the 1939 April Term of the Grand Jury for Kanawha County the said defendant corporation, while acting by and through its authorized agents, contriving maliciously to wrong and injure the said plaintiff, and to cause the said plaintiff to be held in the custody of the law for a long space of time, and to cause the plaintiff to be oppressed and annoyed, heretofore, to-wit, at said 1939 April Term of the Grand Jury for Kanawha County appeared said corporation by its agents and falsely and maliciously and without any reasonable or probable cause whatever, charged said plaintiff with embezzling from said corporation a large sum of money, to-wit: $1108.40; and upon said charge falsely and maliciously and without any reasonable or probable cause whatsoever caused the said Grand Jury to return an indictment in due form of law against the said plaintiff for committing a felony, to-wit: embezzlement of $1108.40 from said corporation, and directed the State of West Virginia, by and through the Prosecuting Attorney of Kanawha County, to bring said plaintiff to trial to answer for said felony, which the said defendant had maliciously and without probable cause accused the said plaintiff of committing; ***." The declaration then goes on to show the several continuances of the case and the final dismissal of the indictment.

The questions arising on the record may be briefly summarized as follows: (1) The rule governing recovery or non-recovery in an action for malicious prosecution; (2) whether the prosecution of the plaintiff was instigated by the defendant maliciously and without...