Staley v. Rife

• Decision Date: 25 November 1930
• Docket Number: 6740.
• Parties: STALEY v. RIFE et al.
• Court: West Virginia Supreme Court

156 S.E. 113

109 W.Va. 701

STALEY v. RIFE et al.

No. 6740.

Supreme Court of Appeals of West Virginia.

November 25, 1930

Submitted November 18, 1930.

Syllabus by the Court.

Prosecution for crime is presumed to have been founded upon probable cause and instituted for purpose of justice.

The public policy favors prosecution for crimes and requires the protection of a person who in good faith and upon reasonable grounds institutes proceedings upon a criminal charge. The legal presumption is that every prosecution for crime is founded upon probable cause and is instituted for the purpose of justice. McNair v. Erwin, 84 W.Va. 250, 99 S.E 454.

Probable cause in malicious prosecution action is generally mixed question of law and fact; where facts are admitted or assumed, it is question of law in malicious prosecution action whether they constitute probable cause.

In such action probable cause is a mixed question of law and fact. But where the facts are admitted or assumed, whether they constitute probable cause or not, or whether from them the existence or absence of probable cause is to be inferred, is a pure question of law for the decision of the court and not for the jury.

Trial court's ruling upon admitted facts that there was probable cause for prosecution will not be reversed unless plainly wrong.

Where the court decides from admitted facts in the case that there was probable cause for the prosecution complained of, such ruling will not be reversed unless plainly wrong.

Additional Syllabus by Editorial Staff.

Trial court's determination that as matter of law defendant had probable cause for instituting embezzlement prosecution against former officer of corporation held justified.

Plaintiff was elected secretary-treasurer of new drug company and placed in active management of the concern. All money paid in for stock in the corporation was a total loss, and there remained some outstanding indebtedness, after corporation sold its stock and fixtures. During his term as manager plaintiff bought drug store in nearby town and paid off a $2,000 obligation which he had assumed. It further appeared that corporation's gross profits during plaintiff's management were $25,000, and plaintiff had failed to plead to the indictment, and in the present case made no specific denial of embezzlement.

Error to Circuit Court, Wayne County.

Action by J. H. Staley against J. W. Rife and others. Judgment for defendants, and plaintiff brings error.

Affirmed.

Marcum & Marcum and W. T. Lovins, all of Huntington, for plaintiff in error.

Vinson Thompson, Meek & Scherr, of Huntington, for defendants in error.

WOODS J.

This is an action to recover damages for an alleged malicious prosecution. This writ is prosecuted from the action of the trial court in striking plaintiff's evidence and directing a verdict for the defendant.

It appears that three separate indictments had been returned against the plaintiff in the latter half of 1927 charging him with the embezzlement of certain moneys and effects of the Kenova Drug Company. Each was returned on the information of J. W. Rife, one of the stockholders. The first two were dismissed on demurrer, and the third, at a subsequent term, was nollied by the prosecuting attorney. Plaintiff, the three defendants, and a fifth party (an attorney holding one qualifying share) organized the Kenova Drug Company in 1923. Plaintiff, who had been employed for some months in another drug store in the same city, was elected secretary-treasurer of the new corporation, and placed in active management of the concern. He continued to act in this capacity until March, 1927, when he was relieved of his duties by corporate action. Shortly thereafter the stock and fixtures were sold under the Bulk Sales Law (Code c. 74, § 3a) to a Huntington concern. All money paid in for stock in the corporation ($11,100) was a total loss. In addition, there remained outstanding a $2,666.66 indebtedness on two $2,000 notes of the corporation, which were indorsed by the plaintiff and the three defendants. During his term as manager (40 months), plaintiff bought a drug store in Westmoreland (six miles distant) for a consideration of $5,000 and placed his brother in charge. During 2 1/2 years' operation plaintiff paid off the $2,000 obligation, which he had assumed, to a wholesale company, and $500 on the $3,000 loan secured on his note. This business was sold to the brother for a consideration of $1,000 and the assumption of the then outstanding indebtedness. $100 of the consideration was actually paid. Orders in case lots were bought by Kenova Drug Company and split with the Westmoreland store. Accounts between the two stores were kept on small notebooks, no entries being made on the regular ledger of the corporation. On the other hand, the Kenova Drug Company during plaintiff's management did a $110,000 business, $25,000 of which represented gross profits. This latter amount plaintiff says was eaten up by salaries, rents, taxes, and the like. The testimony in this regard is at best very general and fragmentary. Quite a considerable sum seems to remain unaccounted for. He states that at a hold-over meeting of the board of directors three months before he was discharged, a question arose about the salary he was to receive; that two of defendants, Rife and Garrett, placed it at $150 and $175, respectively, but the third, plaintiff's uncle, was not positive. Plaintiff states that the arrangement was to pay him $200, and that he paid himself on that basis. A part of the salary is still claimed to be due. Plaintiff also pointed out an entry which he had made in the minutes of the first meeting of the board of directors that "he shall receive $200.00 a month." He states...