Thomas v. Beckley Music & Elec. Co., 12083

• Decision Date: 21 November 1961
• Docket Number: No. 12083,12083
• Citation: 123 S.E.2d 73,146 W.Va. 764
• Court: West Virginia Supreme Court
• Parties: Mozette THOMAS v. BECKLEY MUSIC AND ELECTRIC COMPANY, a Corporation, and Colin McLuckey.

Page 73

123 S.E.2d 73

146 W.Va. 764

Mozette THOMAS v. BECKLEY MUSIC AND ELECTRIC COMPANY, a Corporation, and Colin McLuckey.

No. 12083.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 12, 1961.

Decided Nov. 21, 1961.

Syllabus by the Court.

1. 'A motion for a continuance is addressed to the sound and reviewable discretion of a trial court. The action of such court in overruling a motion of that character, in the absence of abuse of such discretion, is not ground for reversal.' Point 1, Syllabus, Staples v. Left Fork Fuel Company, 138 W.Va. 819 .

2. 'The rule governing continuance applies to motions to postpone to a later day, but courts will sometimes more readily exercise their discretion to postpone than to continue the case for the term.' Point 3, Syllabus, Thorn v. Tetrick, 93 W.Va. 455 .

3. 'In a civil action for malicious prosecution, the issues of malice and probable cause become questions of law for the court where the evidence pertaining thereto is without conflict, or, though conflicting in some respects, is of such nature that only one inference may be drawn therefrom by reasonable minds.' Point 7, Syllabus, Truman v. Fidelity and Casualty Company of New York, W.Va., 123 S.E.2d 59.

4. A copy of a receipt alleged to have been given to the buyer of personal property repossessed by the seller pursuant to provisions of a conditional sales contract, containing self serving statements relating to issues involved in a malicious prosecution action, is not admissible in evidence as an entry made in the regular course of business.

5. In a malicious prosecution action involving compensatory and punitive damages, it is not reversible error for the trial court to refuse to instruct the jury that separate findings should be made as to the amount of such damages, where the parties have agreed that such damages may be consolidated in one finding: the agreement constitutes a waiver of any right to have the jury so instructed.

J. W. Maxwell, Beckley, for plaintiffs in error.

Howard W. Carson, Oak Hill, for defendant in error.

GIVEN, Judge.

This action, based on alleged malicious prosecutions, was instituted in the Circuit Court of Fayette County, by Mozette Thomas against the Beckley Music and Electric Company and Colin McLuckey, president of the corporation and in charge of its operations. After completion of the introuction of evidence, the court directed a finding for plaintiff, insofar as liability was concerned, and left to the jury only the question of the amount of damages. The jury returned a verdict in favor of the plaintiff, finding damages in the amount of $8,500.00, and judgment was entered on the verdict.

The cause of action grew out of criminal prosecutions against Thomas, instituted by defendants, supposedly in connection with a transaction whereby defendants sold to Thomas, on a conditional sales contract, a combination radio-television set, and materials necessarily used in the installation thereof. The contract, duly executed, was timely recorded in Raleigh County, wherein the property was located. The contract provided that the property should be kept at the Raleigh County address, and contained this provision: 'Buyer shall be responsible for any loss of or damage to said property. Should Buyer fail to pay said Time Balance or any part thereof when due, the entire unpaid balance shall be at Seller's election become due immediately, or Seller may without notice, demand or legal process, take possession of the merchandise wherever located and retain all monies paid thereon for the use of said merchandise.' It is not questioned that the buyer was in default in the monthly payments provided for by the contract long before any attempt was made to repossess the property, or to prosecute Thomas.

The conditional sales contract was executed, and the television set delivered, on the fifth day of February, 1955. In June, 1955, after having made several monthly payments, Thomas moved from his place of residence in Raleigh County to Ingram Branch, in Fayette County. In August, 1957, he moved from Ingram Branch to Minden, also in Fayette County. In April, 1959, he moved from Minden to Prudence, in Fayette County, where he resided at the time of the trial. The evidence is in conflict as to whether defendants had notice of the intention of Thomas to move the television set from Raleigh County but, in view of the action of the court in instructing the jury, we assume for the purpose of consideration of the case, that defendants had no such notice.

There apparently can be no reasonable doubt that defendants made continuous efforts to effect collection of the delinquent monthly payments, without success, except that one payment was received some time in September, 1956, while Thomas resided at Ingram Branch. After learning that the television set had been moved to Minden, on August 6, 1958, it was repossessed by defendant McLuckey and an employee of the Beckley Music and Electric Company, and remained in the possession of defendants and was attempted to be exhibited to the jury at the time of the trial.

On April 9, 1957, defendants caused a warrant to be issued by a justice of the peace of Raleigh County, charging Thomas with having committed a misdemeanor. Apparently the charge was dismissed for 'lack of evidence', but that warrant is not mentioned in the declaration, though certain evidence relating thereto was admitted in evidence, apparently for the purpose of indicating whether there existed malice in the repeated prosecutions of Thomas.

On August 20, 1958, on complaint of the defendant McLuckey, who also was acting in behalf of the defendant corporation, a second warrant was issued by the same justice of the peace, charging Thomas with having committed a misdemeanor for 'destruction of property'. Pursuant to the command of this warrant, Thomas was arrested in Fayette County by a deputy sheriff of that county, and was detained by the sheriff of that county for several hours, and was incarcerated in jail for approximately forty-seven minutes, until he obtained surety for his appearance for trial on the charge contained in the warrant, time for the trial having been set for the twenty-eighth day of October, 1958. On the day set for trial Thomas appeared before the justice of the peace in Raleigh County. The warrant under which the arrest had been made was apparently withdrawn by defendants and, at that time, on complaint of 'Beckley Music and Electric Company By Colin McLuckey', the same justice of the peace issued a warrant which charged that Thomas 'did unlawfully and feloniously take and carry away, destroy, injure and deface certain personal property * * * in violation of Chapter 61, Art. 3, Sec. 30 of the Code of West Virginia * * *'. On the same day Thomas was tried on the charge contained in the last mentioned warrant, and the justice of the peace noted on his docket that: 'After hearing all the evidence and argument by counsel, the verdict of the court is, that the defendant is guilty. The defendant is therefore dismissed--Venue of jurisdiction lies in other County.' The evidence makes it clear, however, that the result of the trial was not based on the merits of the case, but on the question of venue.

It is contended by defendants that the failure of Thomas to return certain materials sold and used in the installation of the television set, and damages done to it by Thomas, constitute sufficient proof of the existence of probable cause in the prosecution of the criminal proceedings. The evidence as to such matters admitted in evidence is very meager, not sufficient to establish any fault on the part of Thomas, who testified positively that, at the time of the repossession of the television set, there 'hadn't been no damage done to it'. Another witness, Lola Drafton, testified to the effect that she had observed the set a short time before it was repossessed and no damage had been done to it at that time. This evidence, and other evidence to the same effect, is not really denied by anything properly in the record, except perhaps the proof shows that a control knob had been broken and that the television set needed new tubes, but it is not established, or even indicated, that such conditions resulted from any wrongful act on the part of Thomas.

Ruby McLuckey, wife of defendant Colin McLuckey, and secretary and treasurer of Beckley Music and Electric Company, and who appeared fully familiar with the transaction, testified that the reason a warrant was 'sworn out' against Thomas was: 'Well, this was the second time we had lost Mr. Thomas and we were trying to find our merchandise, so we swore a warrant out, trying to locate him.' As above pointed out, defendants actually filed three complaints and caused three warrants to be issued against Thomas, two of the charges contained in the warrants not having been prosecuted to a final determination of the truth or falsity of the charges, and the warrant on which Thomas was arrested and incarcerated was apparently withdrawn by defendants. Certainly it can not be argued that such facts are in conflict with those establishing want of probable cause, or that they make a question of fact for jury determination. The evidence of defendants, in truth, strengthens the proof of Thomas as to the want of probable cause and as to the existence of malice. No witness other than Ruby McLuckey was called by defendants.

The first question to be considered is whether the trial court committed prejudicial error in refusing to grant defendants a continuance of the trial. The action was matured for trial at the July, 1959, term of court. On motion of defendants a continuance was granted to the September, 1959, term of court. On September 28, 1959, counsel for defendants, counsel theretofore but not now representing defendants, went to the office of counsel for plaintiff and represented his inability to try the case on the first day of October,...