Tatum Bros. Real Estate & Investment Co. v. Watson

• Decision Date: 19 July 1926
• Citation: 92 Fla. 278,109 So. 623
• Parties: TATUM BROS. REAL ESTATE & INVESTMENT CO. v. WATSON.
• Court: Florida Supreme Court

109 So. 623

92 Fla. 278

TATUM BROS. REAL ESTATE & INVESTMENT CO. v. WATSON.

Florida Supreme Court, Division B.

July 19, 1926

Error to Circuit Court, Dade County; H F. Atkinson, Judge.

Action by P. L. Watson against the Tatum Bros. Real Estate &amp Investment Company for malicious prosecution. Judgment for plaintiff, and defendant brings error.

Reversed for new trial.

Syllabus by the Court

SYLLABUS

The gist of the action of malicious prosecution is that plaintiff has been, without probable cause and maliciously, made the subject of legal process resulting in his damage.

If any of elements of action for malicious prosecution are lacking action cannot be maintained. An action for maliciously putting the law in motion lies in all cases where there is a concurrence of the following elements: (1) The commencement or continuance of an original criminal or civil judicial proceeding. (2) Its legal causation by the present defendant against plaintiff who was defendant in the original proceeding. (3) Its bona fide termination in favor of the present plaintiff. (4) The absence of probable cause for such proceeding. (5) The presence of malice therein. (6) Damage conforming to legal standards resulting to plaintiff. If any one of these elements is lacking, the result is fatal to the action.

An action for malicious prosecution is an action in tort to recover damages for the institution, maliciously and without probable cause, of a suit which has terminated in favor of the defendant therein.

An action for damages for the malicious prosecution of civil suits disputing the title to lands is not an action for damages for injury to the person, nor for detention conversion, or injury to personal property.

Property in a legal sense, consists in the domination which is rightfully and lawfully obtained over a material thing, with the right to its use, enjoyment, and disposition.

Plaintiff, in action for malicious prosecution, nas burden of proving all essential elements by preponderance of evidence. In an action for malicious prosecution the burden of proving all the essential elements of the cause of action, including the concurrence of malice and want of probable cause, is on the plaintiff; and, to sustain a recovery, all such essential elements must be established by a preponderance of the evidence.

To make out cause of action, there must be malice and want of probable cause, which cannot be inferred from malice. To make out a cause of action in malicious prosecution, malice and want of probable cause must concur. Want of probable cause cannot be inferred from malice. But malice may be implied or inferred as a fact from want of probable cause.

Inference of malice from want of probable cause is not one of law but merely rebuttable presumption which should not be drawn if other facts lead to different conclusion. The jury may infer malice from want of probable cause, and it has been said that ordinarily it does so. Nevertheless, the inference is not one of law but merely a presumption of fact which may be rebutted and is one which the jury is not required to draw, and which it should not draw if other facts disclosed by the evidence lead to a different conclusion.

Charge authorizing recovery for malicious prosecution on proof of want of probable cause held erroneous as omitting element of malice. In an action for malicious prosecution, a charge that, 'if you believe from a preponderance of the evidence that there was a total want of probable cause, * * * your verdict should be for the plaintiff,' is erroneous in that it requires a finding for the plaintiff whether the jury did or did not infer from a total want of probable cause, if so found by them, that the prosecution complained of was malicious.

Where the evidence is inconclusive, a materially erroneous charge may be harmful and reversible error.

COUNSEL

Shutts & Bowen and John S. Benz, all of Miami, for plaintiff in error.

H. Pierre Branning and S. P. Robineau, both of Miami, for defendant in error.

OPINION

WHITFIELD, P.J.

The second amended declaration herein, filed April 2, 1923, alleges:

'That on or about September 8, 1917, the plaintiff, Watson, did then and there become the owner of, and a party to, a contract (Exhibit A) for the purchase and sale of described land. That the plaintiff, being desirous of disposing of his right, title, and interest in and to the aforesaid contract or the property therein described in some manner by which he could raise certain funds which he at that time was in need of for other purposes, did offer said property for sale at the price of $60,000 and did on or about the 15th day of November, 1917, grant and give unto one W. I. Phillips an option to purchase said property at the price of $60,000, a copy of which option is hereby attached and marked Exhibit B, which said option was thereafter assigned by the said W. I. Phillips unto one Ovid G. Lindsay. That thereafter the said Ovid G. Lindsay and the said W. I. Phillips became ready, able, and willing to purchase said property upon the terms as set forth and described in said option, and each of them did verbally advise this plaintiff of said willingness, readiness, and ability on their part and each of them; whereupon this plaintiff had made arrangements to close the sale of said property unto the said Ovid G. Lindsay on or about the 13th day of December, 1917. That on or about the 12th day of December, A. D. 1917. the defendants herein acting by and through their agent, J. H. Tatum, did request this plaintiff to call at the office of the defendant corporation, in response to which request this plaintiff did then and there call on the said defendant corporation, and was then and there met by the said J. H. Tatum, who, acting as the agent of and for the defendant herein, submitted unto this plaintiff a proposed contract wherein and whereby the right, title, and interest of this plaintiff in and to the aforesaid Exhibit A and the property therein described would become, if executed, the property of the defendant herein, which proposal and offer of purchase by the defendant herein this plaintiff did then and there refuse to accept and accede, whereupon the said defendant corporation by and through its agent, J. H. Tatum, and the said J. H. Tatum, acting for and as agent of said corporation, did then and there advise, threaten, and warn this plaintiff that unless he would then and there accede to and accept the proposed offer of purchase by the defendant corporation of this plaintiff's rights, title, and interest in and to the aforesaid Exhibit A, and the real property therein described and set forth, that the defendant herein would institute suit against this plaintiff, wherein and whereby the right, title, and interest of this plaintiff in and to the aforesaid Exhibit A and the property therein described would be 'tied up' and clouded, and that the said defendant corporation would 'tie up' and cloud the aforesaid property, and all other real estate then owned by this plaintiff. That shortly thereafter, to wit, the next day, December 13, A. D. 1917, the defendant, well knowing the premises, and maliciously and without probable cause contriving to cause it to be suspected that such right, title, and interest, as was then held by the plaintiff herein to the contract, of which Exhibit A is a true copy, and the land therein described, was not held by this plaintiff in his own right but was, in fact, held by this plaintiff as trustee of and for the defendant herein, did institute a suit in equity on the 13th day of December, 1917 and did cause to be filed in said cause a bill of complaint, a lis pendens and an amended bill of complaint wherein and whereby the defendant herein did charge, allege, publish, and declare that as to the capacity in which this plaintiff entered into the contract, of which Exhibit A is a true copy, to be that of trustee of and for the defendant herein. That by reason thereof the said prospective purchasers on becoming notified of the aforesaid suit in equity, to wit, December 13, 1918, were, and each of them dissuaded and prevented from acquiring and purchasing the aforesaid property for the price and at a valuation of $60,000, by reason of the aforesaid suit in equity, and, as a consequence and approximate result thereof, this plaintiff was unable to sell the said property for the sum and at the valuation of $60,000, as he would and could have done.

'That thereafter the said Ovid G. Lindsay and the said W. I. Phillips, each of them, as evidenced by their readiness, willingness, and ability to purchase said property at a price of $60,000, did on or about March 30, 1918, make a legal tender of the sum of $30,000 cash together with a mortgage upon said property in the amount of $30,000, they and each of them, however, being unwilling to accept a deed to said property as long as the aforesaid suit in equity was pending and undetermined; that in the place and stead of this plaintiff being able to dispose of said property at the value of $60,000 as he would and could have done as aforesaid, this plaintiff was forced to sell said property for a far less sum, to wit, $37,500 and did, on or about the first of April, 1918, enter into a certain contract with one of the aforesaid prospective purchasers, Ovid G. Lindsay, for the purchase and sale of said property and the right, title, and interest of this plaintiff therein, all as appears by copy of said contract which is hereto attached, marked Exhibit E and made a part hereof, as if set forth herein in haec verba.

'That the plaintiff was thereupon forced to defend the above-described suit in equity and forced to spend divers sums of money on account thereof, to wit, $3,000. That by reason of the

...