Southern Ry. Co v. Mosby

• Decision Date: 09 March 1911
• Citation: 112 Va. 169,70 S.E. 517
• Parties: SOUTHERN RY. CO. v. MOSBY.
• Court: Virginia Supreme Court

70 S.E. 517

112 Va. 169

SOUTHERN RY. CO.

v.MOSBY.

Supreme Court of Appeals of Virginia.

March 9, 1911.

1. Malicious Prosecution (§ 56^*)—Want of Probable Cause—Burden of Proof.

The plaintiff has the burden of showing combined malice and want of probable cause.

[Ed. Note.—For other cases, see Malicious Prosecution, Cent. Dig. §§ 112-116; Dec. Dig. 8 56.*]

2. Malicious Prosecution (§ 19*) —Probable Cause.

Probable cause does not depend on the guilt or innocence of accused.

[Ed. Note.—For other cases, see Malicious Prosecution, Cent. Dig. § 25; Dec. Dig. § 19.*]

8. Malicious Prosecution (§ 18*) —Probable Cause—Criminal Prosecution.

Information received from an accomplice is sufficient to create probable cause if there is no reason to doubt its truth. [Ed. Note.—For other cases, see Malicious Prosecution, Cent. Dig. §§ 23-38; Dec. Dig. § 18.*]

4. Malicious Prosecution (§ 59*)—Evidence —Probable Cause—Reputation.

Plaintiff's previous good reputation, if known to the prosecutor, may be shown on the Question of probable cause.

[Ed. Note.—For other cases, see Malicious Prosecution, Cent. Dig. §§ 125-137; Dec. Dig. § 59.*]

5. Malicious Prosecution (§ 20*)—Want of Probable Cause.

Good faith on the part of the prosecutor is always a sufficient justification, except where an unreasonable credulity is manifested in inducing him to draw conclusions of guilt which persons of ordinary prudence would not have drawn.

[Ed. Note.—For other cases, see Malicious Prosecution, Cent. Dig. §§ 26-28; Dec. Dig. § 20.*]

6. Malicious Prosecution (§ 64*)—Sufficiency of Evidence—Probable Cause.

Evidence held insufficient to show that a prosecution for stealing freight was instituted without probable cause.

[Ed. Note.—For other cases, see Malicious Prosecution, Cent. Dig. §§ 151-153; Dec. Dig. § 64.*]

Appeal from Law and Equity Court of City of Richmond.

Action by Joseph L. Mosby against the Southern Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.

Munford, Hunton, Williams & Anderson, for appellant.

L. O. Wendenburg, for appellee.

CARDWELL, J. On the 24 th day of July, 1908, J. N. Seagle sued out a warrant in the city of Richmond, charging that Joseph L. Mosby, of said city, within 30 days last past, "did unlawfully and feloniously steal, take and carry away one case of Piedmont cigarettes of the value of $85.00 in United States currency, the property of the Southern Railway Company." Upon this warrant Mosby was arrested, carried before the police justice of the city, and there, after a preliminary hearing, was sent on to the grand jury. In October, 1908, the grand jury of the hustings court found an indictment against Mosby, containing three counts; the first count charging him with stealing a case of cigarettes on June 2, 1908, the second with stealing a case of cigarettes on the — day of February, 1908, and the third with stealing a case of cigarettes within 12 months last past.

On the 18th day of May, 1909, when the accused, Mosby, was put upon his trial on his plea of not guilty, the court, upon motion, required the attorney for the commonwealth to elect on which count in the indictment the trial should proceed, and for some reason, not shown, the attorney selected the count charging Mosby with the theft of a case of cigarettes on June 2, 1908, although Seagle had Suggested to him that the accused be tried for stealing the case of cigarettes on July 6, 1908, the charge upon which Seagle had in fact sworn out the warrant which originated the prosecution.

The trial on May 18, 1909, resulted in a verdict of not guilty as charged in the first count of the indictment; the second and third counts having been quashed.

The attorney for the commonwealth, having then full knowledge of all the testimony, on June 7, 1909, again had Mosby indicted for the July, 1908, offiense; but upon his trial in November, 1909, he was also acquitted. Thereupon Mosby instituted this suit against the Southern Railway Company for malicious prosecution, and upon the trial thereof the jury found a verdict in favor of the plaintiff for $6,600, and judgment was entered thereon, which judgment is before us upon a writ of error awarded the defendant company.

The first two assignments of error having been practically waived in the argument here, we need only consider the third and last assignment, which relates to the ruling of the trial court in refusing to set aside the verdict of the jury because contrary to the law and the evidence.

The facts of the case are as follows: Seagle was a special agent of plaintiff in error, and during the winter of 1907 and spring of 1908 had a number of claims against the railroad referred to him for tracing which appeared to be lost shipments. One of these claims was for cases of Piedmont cigarettes, and upon investigation it was found thatthese shipments "checked short under Richmond seals, " so as to indicate that the shipments had never been put in the car, and that the trouble arose before the car left Richmond; there being some 12 or 15 of such lost cases, of which some amounted in value to $87.50 and others $91. The manufacturer and shipper of these cigarettes was the American Tobacco Company, which made the claims against the Southern Railway Company which the latter had referred to S6agle, its special agent. Seagle examined the records of the railway company and found bills of lading had been signed and receipts given for these various shipments. Then he went to the American Tobacco Company to investigate, where he found that each missing case had been handled by a different driver, so that there was no reason to suspect the drivers of the American Tobacco Company. During this investigation Seagle was told by one Moseley, an employe of the American Tobacco Company, that he (Moseley) had heard of a great many claims for lost cases of cigarettes being filed, and that he (Moseley) knew a party who had seen a case marked to the Merchants' Grocery Company, Gaffney, S. C, in Jerry Morano's place in Richmond. Seagle at that time had at his office the papers relating to the claim of this grocery company for the lost case of Piedmont cigarettes, but Moseley was unwilling to give him the name of the party who would give him the information about the case at Morano's place, but later Seagle learned that a Mr. Patrick, connected with the firm of E. A. Saunders & Son, had given Moseley the information. Seagle then talked with Patrick, and thereupon took Smith, one of the clerks of the railway company with him to Morano's place and questioned Mo-rano, and Morano told him that he had been getting these cigarettes for about a year from a man named Duke, who had been a magistrate and was known as "Squire" Duke, and who was tending bar for a man named Doherty. Seagle and Smith then went to see Duke, and Duke confessed, saying that he had been getting the cigarettes from a negro named Ernest Morris, who was not employed by the railway company, and he (Duke) admitted that he had supplied Morano with probably five cases of cigarettes, and asked what it would take to shut the matter up, but declined to tell what employe at the railway station he had been dealing with, and would only say that it was not a negro but a white man. While Seagle and Smith were talking with Duke, J. F. Wiley, a bicycle policeman of the city, came in, and Seagle left Duke with Wiley, while he (Seagle) went and procured a warrant for Morris, and after getting this warrant Seagle was advised by Wiley over the phone that Duke was gone, and thereupon a warrant for Duke was also obtained. Duke was arrested by Wiley and bailed, but subsequent ly forfeited his bail. The day after Duke was arrested, Seagle and Wiley went to Doherty's place, where Mrs. Doherty showed them a note from the negro, Ernest Morris, to her husband, and which she gave to Seagle, in which note Morris referred to Duke having run off, and threatened that if Doherty did not send him (Morris) "money to get out of town, if I am caught I am going to tell on all of you. * * * " Morris, on July 24, 1908, several days after the warrants for him and Duke had been issued, gave himself up, and Seagle and Wiley went to see him and showed him the said note he had written to Doherty, whereupon Morris said that he would tell the whole story, and proceeded to make a statement, the substance of which was that Duke, Doherty, Morano, and himself were implicated in the matter, and one Meredith knew something about it; that a white man employed by the railway company was also connected with the stealing of the cases of cigarettes, and described him and said that he worked at Nos. 8, 9, and 10 doors of the freight receiving shed of the Southern Railway; that Duke had induced him (Morris) to get the cigarettes, and he went down one evening and saw how easy it was to get them; that afterwards Duke gave him (Morris) $10 and told him to get the cigarettes, and if anybody said anything to give him the $10; that the first time he got the cigarettes no one said anything to him, but the second time the man described asked him what he was going to do with the case of cigarettes, to. which he (Morris) replied that he was going to ship them, whereupon Mosby (defendant in error) asked him where was his bill of lading, and he gave him (Mosby) $10 and took the case of cigarettes; that he never had any particular conversation with Mosby after this, but continued to get cases of cigarettes, and at different times handed Mosby $5 or $10, to an aggregate of between $25 and $35, all of which had been furnished by Duke; and Morris claimed that it was impossible for him to be mistaken in the man of whom he was speaking. Seagle and Wiley then took Morris to the Southern Railway shed to identify and point out the man. taking with them a justice of the peace. Purdue, so that a warrant might issue if necessary. Seagle went to the shed ahead of the others, and in a short while Wiley, Morris, and Purdue came in, and thereupon...