State Life Ins. Co. of Indianapolis, Ind. v. Hardy

Decision Date29 April 1940
Docket Number33941
Citation195 So. 708,189 Miss. 266
CourtMississippi Supreme Court
PartiesSTATE LIFE INS. CO. OF INDIANAPOLIS, IND. et al. v. HARDY

APPEAL from the circuit court of Yalobusha county HON. JNO. M KUYKENDALL, Judge.

Action by Mrs. Frances Hardy against the State Life Insurance Company of Indianapolis, Ind., and D. A. Pritchard for malicious prosecution. From a judgment for plaintiff defendants appeal.

Judgment reversed and action dismissed as to the State Life Insurance Company of Indianapolis, Ind., and judgment affirmed on liability as to defendant Pritchard and reversed in so far as it assessed plaintiff's damages and remanded for trial on that issue alone.

Judgment reversed and action dismissed as to State Life Insurance Company, affirmed on liability reversed and remanded.

John F Frierson, of Columbus, for appellant, State Life Insurance Company of Indianapolis, Indiana.

The principal is not liable for the acts of an agent unless (a) the agent acts within the scope of his authority, or (b) the agent is specifically authorized to act, or (c) the act of the agent is ratified.

Russell v. Palatine Ins. Co., 63 So. 644, 106 Miss. 290, 51 L. R. A. (N. S.) 471; Young v. L. B. Price Mercantile Co., 148 So. 641, 166 Miss. 383; Staples v. Schmid (R. I.), 19 L. R. A. 824; Bushard v. United Investment Co., 121 S.C. 324, 113 S.E. 637, 35 A. L. R. 637, 644; 2 R. C. L. Supp. 1325; 3 R. C. L. Supp. 852; 11 R. C. L. 810, par. 23; 18 R. C. L. 811, par. 266; Hudson v. Philadelphia Life Ins. Co., 280 S.W. 403.

The plaintiff must allege and prove, in a case of malicious prosecution, both want of probable cause and malice.

18 R. C. L. 11; 38 C. J. page 386, par. 2, and page 400; Berry v. Priddy, 88 So. 517, 126 Miss. 125; Code 1930, Secs. 1019, 1020, 2186.

We respectfully submit that there was certainly a probable cause and on that alone the defendant, Pritchard, was exonerated and the peremptory instruction asked by him should have been granted.

King v. Weaver Pants Corp., 127 So. 718; 38 C. J. 398, 400, 475; Lunghina v. Marine Trust Co., 298 N.Y.S. 659; So. Ice & U. Co. v. Beach, 64 P.2d 668; Zello v. Glover, 59 S.W.2d 877; Claman v. Nushzno, 246 N.W. 168; Baker v. Lawson, 25 P.2d 375; Kron v. Bodmer, 249 N.W. 772; Graham v. Buffalo General Laundries, 184 N.E. 746; Canter v. Spring, 2 Iowa 293; Seibert v. Price, 48 Am. Dec. 525, Anno.; Greenwade v. Mills, 31 Miss. 464; McNulty v. Walker, 1 So. 55; Lancaster v. Pitts, 122 So. 531.

If the defendant, in good faith, makes a fair statement to a reputable attorney and acts upon the advice of such attorney, he is exonerated from the charge of malicious prosecution.

38 C. J. 427, 428, 429, 430; King v. Apple River Power Co. (Wis.), 111 N.W. 668, 120 A. S. R. 1063; Stewart v. Sonnoborn, 25 L.Ed. 116 and Anno. Note 546, 550, 551; Womack v. Fiducker (La.), 16 So. 645, 646; 25 C. J. 444, Sec. 3; Berry v. Priddy, 88 So. 517, 126 Miss. 125; Whitfield v. Westbrook, 40 Miss. 311.

C. A. Bratton, of Oxford, for appellant, D. A. Pritchard.

On behalf of the appellant, D. A. Pritchard, I am content to adopt the state of facts, brief and argument prepared and filed by the Hon. John F. Frierson, attorney for the appellant, State Life Insurance Company.

We sincerely believe that the evidence discloses conduct on the part of Mrs. Hardy which justified an honest belief on the part of Mr. Pritchard that she was trying to avoid the payment of a debt by the disposition and removal of the agricultural products. If this be true, then there was probable cause.

Berry v. Priddy, 126 Miss. 125.

Did Pritchard make a full and complete statement of the facts as he understood them regarding the transaction to a reputable attorney; and did he then receive, and act upon, the advice of that attorney?

The record discloses that he did disclose the facts to an attorney and was advised by that attorney and acted upon that advice in all good faith. If he did this, we submit that there can be no liability as to Mr. Pritchard.

King v. Apple River Power Co., 111 N.W. 668, 120 A. S. R. 1063.

Creekmore, Creekmore & Capers, and L. A. Wyatt, all of Jackson, and Kermit R. Cofer, of Water Valley, for appellee.

Pritchard was agent of defendant, Insurance Company, and acting within the scope of his authority in prosecution of plaintiff.

Fisher v. Westmoreland, 101 Miss. 180, 57 So. 563; Russell v. Palatine Ins. Co., 106 Miss. 290, 63 So. 644; Young v. L. B. Price Mercantile Co., 167 Miss. 409, 148 So. 643; Craft v. Magnolia Stores Co., 161 Miss. 756, 138 So. 405; C. R. I. & P. Ry. Co. v. Gage, 136 Ark. 122, 126 S.W. 141; Eastman v. Leiser Co., 148 Minn. 96, 181 N.W. 109; Tutton v. Olson et al., 251 Mich. 642, 232 N.W. 399; Dye v. Loewer, 94 S.W.2d 948; Coffman v. Shell Pet. Corp., 248 Mo.App. 727, 71 S.W.2d 97; C. R. I. & P. Ry. Co. v. Holliday, 30 Okla. 680, 120 P. 927; Wolford v. Goldey, 114 W.Va. 259, 171 S.E. 537; Scott v. Citizens Hdw. Co., 180 La. 743, 156 So. 469; Staples v. Schmid, 18 R. I. 224, 26 A. 193; Newton v. Rhoads (Tex.), 24 S.W.2d 378; 35 A. L. R. 645, note; 77 A. L. R. 926, note; Sec. 246, Restatement of Agency and comments thereon.

The question of probable cause was for the jury.

Grenada Coca Cola Co. v. Davis, 168 Miss. 826, 151 So. 743; Lumbley v. Gilruth, 65 Miss. 23, 3 So. 77; Whitfield v. Westbrook, 40 Miss. 311; Berry v. Priddy, 126 Miss. 125, 88 So. 517; O'Bryant v. Coleman, 169 Miss. 776, 154 So. 259; Medlin v. Clarksdale Steam Laundry, 136 Miss. 390, 101 So. 557; Brooks v. Super-Service, 185 So. 202; Kennedy v. Burbridge, 183 P. 325, 5 A. L. R. 1682; Hutchinson v. Wenzel, 155 Ind. 49, 56 N.E. 845; Norvell v. Vogel, 39 Minn. 107, 38 N.W. 705.

Advice of counsel was not a defense in this case.

38 C. J. 432, 433; Wyatt v. Burdett, 43 Colo. 208, 95 P. 336; Kehl v. Pope Oil Mill Co., 77 Miss. 762.

Argued orally by John F. Frierson, C. A. Bratton, and Robert L. Smallwood, Jr., for appellants, and by H. H. Creekmore, and Wade H. Creekmore, for appellee.

Smith, C. J., Anderson, J., dissenting. Griffith, J., concurs in the foregoing opinion.

OPINION

Smith, C. J.

This is an action for malicious prosecution. The prosecution was instituted by D. A. Pritchard, an agent for the State Life Insurance Company, with limited authority, as an incident to an attempt by Pritchard to collect a debt due by the appellee's deceased husband to the insurance company. Pritchard and the insurance company were defendants to the action, and both separately requested, but were refused, a directed verdict.

The material facts, in substance, are: the insurance company owned a plantation in Lafayette County, which W. H. Hardy, the appellee's deceased husband, had verbally leased annually for several years. A promissory note was given by him for the rent for 1937, fixing it at $ 1780, due October 1, 1937, and reciting: "For the faithful performance by me of all the conditions named in this note, I hereby convey a lien on all crops produced on said land, . . ."

The insurance company admits that $ 280 of this $ 1780 was not for rent for 1937, but was due the insurance company by Hardy in 1936. Cotton was the main crop raised by Hardy on this plantation. He was accustomed, with the knowledge of, and without objection by, the insurance company, to remove this cotton from the plantation and after having it ginned and baled to store it in a warehouse, generally in Grenada County. He would then either sell the cotton and pay the rent with the proceeds, or deliver warehouse receipts to the company in settlement thereof. He had thirty-six bales of cotton in a Grenada County warehouse when he died on October 14, 1937. A few days after his death, an agent of the insurance company called on the appellee for the purpose of collecting the rent due the company by Hardy. She delivered the warehouse receipts to this agent so that he might sell the cotton and apply the proceeds thereof to this rent. There is an agreement in the record that this cotton was sold for $ 1, 627.38, but the parties seem to have proceeded on the theory that it sold for $ 1, 621.36. The insurance company had advanced the appellee, after her husband's death, $ 100, which, added to the $ 1500 rent for 1937, makes $ 1600, so that the proceeds of the thirty-six bales of cotton were either $ 27.38 or $ 21.36 in excess of the aggregate of these two items.

The appellee claimed this excess but an agent of the company advised her that the amount due the company by her husband was $ 1780, plus the $ 100 advanced to her, leaving a balance due over the proceeds of the cotton of $ 258.64. There is no evidence that the note executed by her husband was ever seen by the appellee and she acted throughout on information from her husband that the rent on the plantation for 1937 was $ 1500. When the appellee was advised that $ 280 of the $ 1780 claimed by the insurance company was for the balance due the company by her husband in 1936, she challenged the correctness thereof, and also stated that there could be no landlord's lien on the crop of 1937 for a debt due in 1936. The company's agent requested the appellee (and one of his letters in evidence states that she agreed) to sell enough of the agricultural products remaining on the premises to pay this balance of $ 258.64 or to send him warehouse receipts for cotton sufficient for that purpose.

Hardy's lease and right to the possession of the plantation expired on December 31, 1937, and it had been leased by the company to Pritchard for the year 1938. In December 1937, while this controversy was pending, the appellee ginned and baled five bales of cotton which she stored in her garage at her residence in Water Valley, Yalobusha County.

On December 16, 1937, Avant, an agent of the insurance...

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