Torian v. Ashford

• Decision Date: 24 March 1927
• Docket Number: 8 Div. 832
• Citation: 216 Ala. 85,112 So. 418
• Parties: TORIAN v. ASHFORD.
• Court: Alabama Supreme Court

112 So. 418

216 Ala. 85

TORIAN v. ASHFORD.

8 Div. 832

Supreme Court of Alabama

March 24, 1927

Rehearing Denied April 21, 1927

Appeal from Circuit Court, Lawrence County; James E. Horton, Judge.

Action by S.T. Torian against Mrs. Lucy Ashford. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

Statements of law in judicial opinions are not always proper for instructions in other cases.

The action is for a malicious prosecution. The following facts are undisputed: S.T. Torian, Sr., died at his home, in Courtland, on February 24, 1924, leaving two children surviving--the plaintiff, S.T. Torian, Jr., living in Courtland, and a daughter living in Denver, Colo. He was ill for about two weeks before his death, being very old and nearly helpless, and during that time the defendant, Mrs Ashford, who was his niece, waited on him and looked after his wants; spending most of the day at his home, and being there when he died.

Plaintiff's account of his prosecution and arrest is substantially as follows: When he heard his father was dead, he went to the house, and as he went in he took the key from the front door and then from other doors. When defendant saw him, she told him she had possession, and he would have to get out. He asked her to show him her authority, and said if she did not he would take possession himself, and she could get out. He then sat down and was talking to his wife in a low tone, and defendant came and told him he would have to leave, and if he did not she would have him arrested. In a short while an officer came with a warrant, and read it to plaintiff, and arrested him, and took him off the premises.

The defendant's testimony was substantially as follows: Her uncle, the deceased, told her several times during his last illness, that he wanted her "to keep possession of the place" until his daughter could arrive from Denver, and that if his son (the plaintiff) came there, to keep possession of the place. When plaintiff came in she was getting out funeral clothes for the deceased, and plaintiff said:

" 'I have possession here now, Mrs. Ashford, you have had it long enough. *** I have the keys in my pocket and you nor nobody else can get them.' He then walked out into the hall, and that is all that he said. After all this came up, I asked Tom Ashford (her son, and a justice of the peace) what I should do. I went first and told Sam (the plaintiff) what his father had said; that is, that he had left me in possession; *** that his father had left me in possession until his daughter came. I asked him if he would not go away, and he just sat there with his feet crossed, *** and said, 'Thank you.' I said, 'Won't you go without any trouble?' He said, 'No.' I said 'I will have to take proceedings,' and I walked back in the room and didn't see him any more."

Her son Tom told her to call Mr. Chenault, and talk with him about it. Tom went out and got Coburn, a justice of the peace, and they said they had told Mr. Chenault all that happened, and Mr. Chenault (a practicing lawyer) told them to get out this warrant, the affidavit to which she then signed. (The affidavit charged that the plaintiff "did enter upon the premises of the affiant, and, being warned to leave said premises, did fail to do so without just cause or legal excuse." The warrant of arrest was on a charge of "trespass after warning.") Defendant stated, on cross-examination, that her only object in swearing out the warrant was to get plaintiff off of the premises.

No prosecutors appeared in court, and the prosecution was dismissed by the solicitor.

All the witnesses agreed that plaintiff was quiet and well-behaved, and made no noise or disturbance in the house.

The attorney, Mr. Chenault, testified to what defendant's son had told him when he called him for advice; and he said:

"I told Tom over the telephone that the plaintiff would not have the right to come there over the objection of the person in possession, if his mother was left in possession, and over her objection he would not have the right to go there. *** He told me that 'she had remained there, and that the old man had requested her to hold possession until Helen came,' *** I told him that I would advise an arrest under those conditions."

At plaintiff's request, the trial judge instructed the jury as follows:

"(1) The defendant is not protected by what she had told to her lawyer and advice of her lawyer, unless she acted in good faith on such advice."

"(6) If the defendant failed to tell the lawyer everything material about the occurrence for which she may have had the plaintiff arrested, and if this failure was because of mistake or oversight or inadvertence, then she cannot defend on her lawyer's advice."

"(12) The court charges you that the plaintiff had the legal right to go to the late residence of his father to attend his father's funeral." "(14) If the plaintiff attended his father's funeral ceremonies, and if, while attending them, the plaintiff behaved himself properly, and if, under these circumstances, he was told to leave and if he refused to leave, and if he was arrested and prosecuted for such refusal, then the court charges you, as matter of law, that such arrest and prosecution was wrongful."

"(19) If the jury believe the evidence, then Torian, plaintiff, had a good excuse for remaining on the premises after a warning to leave."

"(23) If the jury believe the evidence, then upon the death of S.T. Torian, Sr., the right of possession became immediately vested in S.T. Torian, Jr., the plaintiff."

The following charges were refused to plaintiff:

"(2) If the defendant made disclosures to counsel and obtained his advice simply as a subterfuge for having an excuse to procure the plaintiff's arrest, then advice of counsel would be no defense whatever."

"(5) If the defendant misrepresented to her lawyer any material fact or circumstance, then she cannot defend upon her lawyer's advice to have the plaintiff arrested."

"(6) If a party has another one arrested, after being advised by a lawyer and the lawyer's advice is erroneous or wrong, and the prosecutor believes it to be erroneous or wrong, then such lawyer's advice is no defense."

"(43) If the jury believe the evidence, Mrs. Ashford was not in possession of the property on the day S.T. Torian was arrested.

"(44) The law does not require the plaintiff to satisfy the jury of any point or fact in the case."

"(R) The jury is not required to be actually satisfied of malice or want of probable cause, or of both malice and probable cause, before finding a verdict for plaintiff."

At defendant's request, charges 8 and 9 were given:

"(8) I charge you that, in actions for malicious prosecution, two things are essential to be established by the plaintiff:

"(1) The absence of all probable cause for such prosecution on the part of the defendant.

"(2) That the prosecution was malicious. The defendant may successfully defend, by showing either that there was probable cause for the prosecution, or, admitting that there was not probable cause, still, that she was not actuated by bad motives, or by what the law terms malice.

"(9) Wherever, in actions for malicious prosecution, the defendant, although unable to show a state of facts sufficient to establish the truth of the accusation which was preferred against the plaintiff, is nevertheless able to bring forward such a state of facts and circumstances as to induce in the mind of a reasonably prudent person a well-grounded belief of the guilt of the plaintiff, this will be sufficient for her protection."

The jury found for defendant, and from the judgment thereon plaintiff appeals.

E.W. Godbey, of Decatur, for appellant.

S.A. Lynne, of Decatur, and G.O. Chenault, of Albany, for appellee.

This case having been submitted under Supreme Court rule 46, the opinion of the court was prepared by Mr. Justice SOMERVILLE.

On the undisputed facts of the case, plaintiff was not guilty of trespass after warning, and, as a matter of law, there was no probable cause for his prosecution on such a charge, apart from the advice of counsel. This was, in effect, the plain instruction given to the jury by the trial judge.

On the other hand, there seems to have been no express malice or ill will on the part of the prosecutor, though legal malice ought perhaps to have been inferred from her confessed purpose to use the criminal process to accomplish her purely private design of protecting the premises against plaintiff's unwelcome presence in the house, pending his sister's arrival from Denver. Jordan v. A.G.S.R.R. Co., 81 Ala. 220, 226, 8 So. 191; Lunsford v. Dietrich, 93 Ala. 565, 569, 9 So. 308, 30 Am.St.Rep. 79; Ewing v. Sanford, 21 Ala. 157, 163.

The decisively important issue submitted to the jury was on the effect of the advice of counsel given to defendant on the eve of the prosecution complained of--whether it met the...