Stanford v. A. F. Messick Grocery Co

• Decision Date: 18 December 1906
• Citation: 55 S.E. 815,143 N.C. 419
• Parties: STANFORD . v. A. F. MESSICK GROCERY CO.
• Court: North Carolina Supreme Court

55 S.E. 815

143 N.C. 419

STANFORD .

v.A. F. MESSICK GROCERY CO.

Supreme Court of North Carolina.

Dec. 18, 1906.

1. Malicious Prosecution—Abuse or Process—Difference Between.

To maintain an action for malicious prosecution, plaintiff must show that a proceeding has been instituted against him without probable cause, and from malice, and that damages have been sustained, and that the proceeding has been terminated by his discharge or acquittal; while, to sustain an action for malicious abuse of process, there must be shown an ulterior purpose, and an act done in the use of a process not proper in the regular prosecution of the case.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 33, Malicious Prosecution, §§ 21, 72, 80.]

2. Malicious Prosecution—Action—Pleading—Proof—Issues.

In a suit for malicious prosecution and malicious abuse of process, the allegations and evidence showed that plaintiff's grievance arose from his criminal prosecution for embezzlement, in which he was arrested and bound over to the court, without showing that defendant attempted to do any act in the criminal prosecution contrary to the regular prosecution of the case. Held, that the submission to the jury of the issue whether defendant caused plaintiff to be arrested and prosecuted for the unlawful purpose of forcing him to pay a debt, and not for the purpose of vindicating the law, was improper.

3. Sams: —Evidence—Admissibility.

Where, in an action for malicious prosecution based on the prosecution of plaintiff for embezzlement of goods sold and delivered to him, the issue was whether there had been an absolute sale or whether the goods had been placed with him on consignment, evidence of what the agent making the sale stated to the manager of defendant as to the nature of the trade, was admissible not only to corroborate the testimony of the agent, but as substantive testimony, the question being whether defendant, in commencing the criminal prosecution, had probable cause for so doing, and whether he acted in good faith.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 33, Malicious Prosecution, §§ 125, 128.]

4. Evidence—Res Gesm: —Declaration or Agent—Admissibility.

Declarations of the manager of defendant to a justice of the peace at the time of the issuance of a warrant for the arrest of plaintiff for a criminal offense, are admissible, in an action for malicious prosecution, as a part of the res gestae.

5. Malicious Prosecution — Probable Cause.

In an action for malicious prosecution, based on the arrest of plaintiff for crime, proof that a committing magistrate bound plaintiff over and that the grand jury found a true bill against him, makes out a prima facie case of probable cause.

6. Same—Malice.

The malice essential to sustain an action for malicious prosecution, does not mean personal ill will, but a wrongful act, knowingly and intentionally done, without just cause, constitutes malice.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 33, Malicious Prosecution, § 60.]

7. Same — Damages — Elements — Attorney's Fees.

In an action for malicious prosecution, the jury may allow for a reasonable attorney's fee paid by plaintiff in the case in which he was prosecuted.

[Ed. Note.—For cases in point, see Cent Dig. vol. 33, Malicious Prosecution, $ 156.]

8. Same—Punitive Damages.

In an action for malicious prosecution, punitive damages are not recoverable in the absence of actual malice, and the jury should be charged that if they find the issue in favor of plaintiff, they should award him compensatory damages, unless they further find that the wrongful act was done from actual malice, in which case punitive damages may be awarded.

[Ed. Note.—For cases in point see Cent. Dig. vol. 33, Malicious Prosecution, §§ 157.]

Appeal from Superior Court Rockingham County; Peebles, Judge.

Action by W. A. Stanford against the A, F. Messick Grocery Company. From a judgment for plaintiff, defendant appeals. Reversed, and new trial ordered.

Civil action for malicious prosecution and also malicious abuse of process. There was evidence tending to show that in November,

1900, the plaintiff became indebted to the defendant in about $97.29 for groceries sold and delivered to the plaintiff, and that such amount was still due and owing; that the transaction was conducted by R. E. Steele, who was at that time salesman for defendant company, and in the matter acted as its agent; that, plaintiff having failed to pay, the defendant caused the arrest and trial of the plaintiff on a charge of embezzlement; that on the preliminary trial before a justice of the peace, in February, 1901, the plaintiff was bound over to court, three magistrates sitting at the hearing; and at the following term of the superior court of Forsyth county a true bill was found by the grand jury against the plaintiff. At the May term,

1901, the plaintiff was acquitted in a trial of the cause before a petit jury, and the plaintiff then commenced the present action for malicious prosecution and malicious abuse of process. The plaintiff claimed, and offered evidence tending to show, that there was an absolute sale of the goods, and that the arrest was wrongful, malicious, without probable cause, etc., and because it appeared to be the only available method of forcing the collection of the claim from the plaintiff, whom the defendant knew to be insolvent and otherwise protected by the homestead exemption laws of the state. There was evidence of the defendant tending to show that the goods were placed with the plaintiff on consignment, and the plaintiff was guilty of embezzlement in willfully failing to settle the claim or account for the proceeds of the sale of goods. The following issues were submitted and responded to by the jury: "(1) Did the defendant cause the arrest and prosecution of the plaintiff, as alleged? Yes. (2) If so, was the arrest without probable cause? Yes. (3) If so, was the arrest malicious? Yes. (4) Did the defendant by its agent cause the plaintiff to be arrested and prosecuted for the unlawful purpose of forcing him to pay the debt due defendant by plaintiff, and not for the purpose of vindicating the law against embezzlement? Yes. (5) What amount, if any, is the plaintiff entitled to recover of the defendant? $2,000." There was judgment for the plaintiff, and the defendant excepted and appealed.

Manly & Hendren and L. M. Swink, for appellant.

Lindsay Patterson and C. O. McMichael, for appellee.

HOKE, J. (after stating the case), in this suit the plaintiff seeks to recover on two causes of action, to wit, malicious prosecution and malicious abuse of process. The former exists when legal process, civil or criminal, Is used out of malice, and without probable cause, but only its regular execution is contemplated. There is malicious abuse of process where a party, under process legally and properly issued, employs it wrongfully and unlawfully, and not for the purpose it is intended by law to effect Wurmser v. Stone, 1 Kan. App. 131, 40 Pac. 993, cited in 1 Cooley on Torts (3d Ed.) 356; Emery v. Ginnan, 24 111. App. 65; Lauzon v. Charroux, 18 R. I. 467, 28 Atl. 975. For recovery on malicious prosecution, as stated in Railroad v. Hardware Co. (at the present term) 55 S. E. 422, there must be shown that an action or proceeding has been instituted without probable cause, from malice, and that damage has been sustained, and that the proceeding has been terminated by the discharge or acquittal of the accused. Cooley on Torts, 320; Jaggard on Torts, 349. In actions for malicious abuse of process, there must be shown (1) an ulterior purpose, and (2) some act done in the use of the process not proper in the regular prosecution of the case. A willful perversion of the process of the court to effect some collateral end, and one not within the scope of the action when regularly and properly pursued. Cooley on Torts, 354, 355. In this last action it is not necessary to show a want of probable cause, nor that the proceeding has terminated.

On the trial below the defendant in apt time excepted to the submission of the fourth issue which was addressed to the second cause of action, as stated in the complaint— that for abuse of legal process. If It be conceded that this issue may arise on the pleadings, there is no testimony to support it as a separate and distinct cause of action. In any event, its submission is not required, for a full and complete determination of the rights of the parties litigant can be better had without it Both the allegations and the evidence show that the plaintiff's entire grievance arises, if at all, from the criminal prosecution for embezzlement, In which, the plaintiff was arrested and bound over to court It is nowhere alleged, certainly, there is no evidence to show, that the defendant did or attempted to do any act in this criminal proceeding, which was contrary to the orderly and regular prosecution of the case. While the complaint endeavors to set up two causes of action, as a matter of fact the testimony only discloses one—that for malicious prosecution—and the allegations purporting to be a second cause of action amount to nothing more than the assertion of a bad motive prompting the first. If, under the principles governing such actions, the defendant was justified in instituting the criminal prosecution, the plaintiff has no cause of action, either first or second. If he was not, then the plaintiff can recover his entire damages on the first, second, third, and fifth issues, and the motive suggested in the fourth issue can be received when properly established, and relevant on the issue as to malice or on the question of damages. As said in Plummer v. Gheen, 10 N. C. 66, 14 Am. Dec. 572: "If a man prosecute another for real guilt howevermalicious his motives may be, he Is not liable in an action for malicious prosecution, nor is he liable If he prosecutes him for apparent guilt...