Truman v. Fidelity & Cas. Co. of N. Y.

• Decision Date: 14 November 1961
• Docket Number: No. 12100,12100
• Citation: 123 S.E.2d 59,146 W.Va. 707
• Court: West Virginia Supreme Court
• Parties: Archie A. TRUMAN v. FIDELITY & CASUALTY COMPANY OF NEW YORK.

Page 59

123 S.E.2d 59

146 W.Va. 707

Archie A. TRUMAN v. FIDELITY & CASUALTY COMPANY OF NEW YORK.

No. 12100.

Supreme Court of Appeals of West Virginia.

Submitted Oct. 3, 1961.

Decided Nov. 14, 1961.

Syllabus by the Court.

1. 'To sustain an action of trespass on the case for malicious prosecution of either a civil suit, action or proceeding, or a criminal charge, there must be a showing, from a preponderance of the evidence of both malice and want of probable cause in the prosecution complained of. Absence of a showing of either is fatal to the plaintiff's claim for recovery.' Hunter v. Beckley Newspapers Corp., 129 W.Va. 302, Pt. 2 Syl.

2. 'The public policy favors prosecution for crimes and requires the protection of a person who in good faith and upon reasonable grounds institutes proceedings upon a criminal charge. The legal presumption is that every prosecution for crime is founded upon probable cause and is instituted for the purpose of justice. McNair v. Erwin, 84 W.Va. 250.' Staley v. Rife, 109 W.Va. 701, Pt. 1 Syl.

3. 'In an action for malicious prosecution, plaintiff must show: (1) that the prosecution was set on foot and conducted to its termination, resulting in plaintiff's discharge; (2) that it was caused or procured by defendant; (3) that it was without probable cause; and (4) that it was malicious. If plaintiff fails to prove any of these, he can not recover.' Radochio v. Katzen, 92 W.Va. 340, Pt. 1 Syl.

4. 'By 'legal malice', as applied in actions for malicious prosecution, is meant any sinister or improper motive other than a desire to punish the party alleged to have committed the offense. Where the chief purpose in instituting the criminal proceeding is by such means to compel the return of property claimed by the prosecutor, it is malicious.' McNair v. Erwin, 84 W.Va. 250, Pt. 2 Syl.

5. 'Probable cause for instituting a prosecution is such a state of facts and circumstances known to the prosecutor personally or by information from others as would in the judgment of the court lead a man of ordinary caution, acting conscientiously, in the light of such facts and circumstances, to believe that the person charged is guilty.' Radochio v. Katzen, 92 W.Va. 340, Pt. 2 Syl.

6. In a civil action for malicious prosecution, the question of probable cause or the absence of it is in no sense dependent on the plaintiff's guilt or innocence of the crime charged in the criminal prosecution forming the basis of the civil action, but depends on the defendant's honest belief in such guilt on reasonable grounds.

7. In a civil action for malicous prosecution, the issues of malice and probable casue 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.

8. 'A suit, action or proceeding, prosecuted in good faith, and on advice of reputable counsel obtained after a fair and accurate disclosure to counsel of the facts on which advice is sought, may not serve as the basis of an action for malicious prosecution.' Hunter v. Beckley Newspapers Corp., 129 W.Va. 302, Pt. 5 Syl. ; Wright v. Lantz, 133 W.Va. 786, Pt. 2 Syl.

9. In a civil action for malicious prosecution, the principles of law pertaining to reliance on the advice of reputable counsel obtain and should be applied, notwithstanding the mere fact that the attorney consulted is not a resident of this state, or notwithstanding the mere fact that such attorney was regularly retained or employed as an attorney by the defendant at the time the advice was sought and given.

10. In a civil action for malicious prosecution, probable cause for the prosecution is established as a matter of law where it appears that the defendant, in initiating and carrying forward the prosecution, relied in good faith on a writing signed by the plaintiff, appearing on its face to be a confession of his guilt of the criminal offense on which the prosecution was based, taken and prepared by law enforcement officers in the course of the performance of their duties as such, there being nothing reasonably to cause the defendant to suspect the invalidity of such confession or its lack of genuineness.

11. 'A verdict of a jury which is without sufficient evidence to support it, or is plainly against the decided weight and preponderance of conflicting evidence, will on proper motion be set aside by the court.' Preston County Coke Co. v. Preston County Light and Power Co., W.Va., Pt. 5 Syl. (119 S.E.2d 420).

Steptoe & Johnson, Stanley C. Morris, Carl F. Stucky, Jr., Charleston, for plaintiff in error.

Laird, Thrift & Hamilton, R. J. Thrift, Jr., Fayetteville, for defendant in error.

CALHOUN, Judge.

This case involves an action for malicious prosecution instituted in the Circuit Court of Fayette County, in which the plaintiff sought recovery of damages in the sum of $50,000. The action is predicated on an alleged malicious prosecution of the plaintiff by the defendant on a criminal charge of obtaining money under false pretenses. The money involved in the criminal prosecution was the sum of $2,335, paid by the defendant, as an insurer, to the plaintiff, as the insured, for damages resulting from the destruction of his automobile. The jury returned a verdict in favor of the plaintiff in the malicious prosecution action in the sum of $9,000; and, in response to a special interrogatory, answered that $7,500 of the total sum represented compensatory damages and $1,500 represented punitive damages. From a final order entered July 6, 1960, by which the trial court overruled the defendant's motion to set aside the verdict and award it a new trial and entered judgment for the plaintiff on the verdict of the jury, the defendant prosecutes this writ of error.

While numerous assignments of error are made by the defendant in its petition for a writ of error and in the brief filed in its behalf, such assignments, in the main, challenge the sufficiency of the proof of malice and lack of probable cause. Under such circumstances, we are called upon to incorporate herein a rather full statement of the facts disclosed by the record.

Archie A. Truman, the plaintiff, at the time of the commencement of the events resulting in this case, lived at Bentree, West Virginia, with his wife and ten children. He was employed at that time as a coal mine in Kanawha County near Montgomery and worked on a shift which commenced at 11:30 p. m. and terminated at 7:30 a. m. He was the owner of a 1957 model Pontiac automobile, the purchase of which was financed through Merchants National Bank of Montgomery. On or about March 18, 1958, when approximately $2,300 remained owing and unpaid by the plaintiff to the bank, he parked his automobile outside the mine when he went to work therein. Next morning the automobile was missing. Later it was found abandoned below a highway on Gauley Mountain in a severely damages condition. The defendant authorized and paid for necessary repairs. The plaintiff testified that when he drove his automobile away from the garage at which it had been repaired, the steering mechanism did not operate properly; that the automobile 'would wander on the road'; and that such condition continued without improvement. His tstimony in this respect was corroborated by the testimony of various other witnesses.

In the late afternoon of May 2, 1958, approximately six weeks after the plaintiff's automobile disappeared from the parking lot outside the mine at which he worked, he left his home in his automobile, and, according to his testimony, proceeded to Gauley Bridge and thence by way of U. S. Route No. 60 to Montgomery to get some tomato plants for his mother. Upon arrival at Montgomery, he discovered that the hardware store at which he intended to purchase the tomato plants was closed. Thereupon, about 6:30 or 7:00 p. m., he left Montgomery to return to his home. In returning he chose a different course of travel over a road, described as Secondary Route 2, which, according to the testimony, is a narrow, steep, rough road, apparently having a single lane of paving. The plaintiff testified further that, while proceeding by this route over Marting Mountain, he 'hit a chug hole and lost control of the steering, couldn't steer it'; that the automobile 'commended to weave to the right and went back to the left and hit the berm, what berm there was there, and I couldn't get it back on it'; and that when it was apparent that the automobile was leaving the road and going over the steep descent below the road, he jumped out of the automobile. He testified that after the automobile came to rest a considerable distance below the road, the horn sounded and the lights blinked intermittently; that the automobile ignited and burned; and that thereupon he walked about four or five miles in the rain to his home. Next morning he got in touch with a representative of defendant company at Montgomery, and also arranged for wrecker service to retrieve his automobile. He testified that he undertook to notify police authorities, but that next morning he learned that L. K. Toney, a deputy sheriff residing at Gauley Bridge, had already visited the scene and checked the situation. Substantially the same account of the entire occurrence had been embodied previously in a written statement in the nature of proof of loss made by the plaintiff on May 14, 1958.

On May 23, 1958, the defendant made and delivered its draft for $2,335, payable to the order of Archie A. Truman and Merchants National Bank, the beneficiary of a loss payable clause in the insurance policy, in satisfaction of the loss sustained by the plaintiff. It was on a charge of obtaining this sum of $2,335 by false pretenses that the plaintiff was indicted by a grand jury of the Circuit Court of Fayette County at the September, 1959, term thereof, and it was that criminal prosecution which...