Smith v. Hughes

• Decision Date: 28 March 1916
• Docket Number: 9356.
• Citation: Smith v. Hughes, 104 S.C. 149, 88 S.E. 369 (S.C. 1916)
• Parties: SMITH v. HUGHES.
• Court: South Carolina Supreme Court

88 S.E. 369

104 S.C. 149

SMITH v. HUGHES.

No. 9356.

Supreme Court of South Carolina

March 28, 1916

Appeal from Common Pleas Circuit Court of Oconee County; Thos. S Sease, Judge.

Action by Henry Smith against W. F. Hughes.From a judgment for defendant, plaintiff appeals.Affirmed.

Fraser J., dissenting.

M. C Long, of Walhalla, for appellant.

Shelor & Hughs, of Walhalla, for respondent.

GAGE J.

Action for malicious prosecution; order of nonsuit at the close of the plaintiff's testimony because want of probable cause and the existence of express malice were not reasonably inferable from the testimony appeal by the plaintiff.The only issue therefore is: Was the testimony sufficient in force and effect for a jury to reasonably infer the above conclusion?The determination of that question is always embarrassing to a circuit judge and to us.But in every case tried before a jury, as the plaintiff proceeds to put his testimony in the notional scales, which is the mind of the judge to start with, the testimony must make some appreciable impression, the scales must move under the weight of the testimony, and, when they have moved so far that a reasonable inference may be had of their tendency, then the judge surrenders his authority, and the jury assumes it.

It is true trial and appellate judges may not be able to so mark the zone of passage from judge to jury as to render it certain.It varies with the circumstances, and it depends much on a judge's mental attitude.It is and must remain therefore uncertain.The trial judge, who sees the witnesses, and who gets the whole setting of the case, is generally better able to make this judgment upon the testimony than we, who see only the cold type.But in those cases where we are satisfied the trial court has erred in this generally nice task the remedy is imperative.

The learned judge who tried the instant cause on circuit was, we venture to think, peculiarly fitted from long experience in the court of sessions to draw from testimony inferences of malice and of probable cause.When he used the term "express malice"he was not charging a jury.He knew that the same malice might be evidenced by expression of the lips or be inferred from acts.The judge thought that the testimony did not warrant the inference that there was malice in the prosecution, or that there was want of probable cause for it.

It is true that, if there be no probable...