Turner v. J. Blach & Sons

• Decision Date: 18 December 1941
• Docket Number: 6 Div. 889.
• Citation: 242 Ala. 127,5 So.2d 93
• Court: Alabama Supreme Court
• Parties: TURNER v. J. BLACH & SONS, Inc.

5 So.2d 93

242 Ala. 127

TURNER v. J. BLACH & SONS, Inc.

6 Div. 889.

Supreme Court of Alabama

December 18, 1941

Appeal from Circuit Court, Jefferson County; Leigh M. Clark, Judge.

Jim & Wallace Gibson and George E. Winkler, all of Birmingham, for appellant.

Leader Hill & Tenenbaum, of Birmingham, for appellee.

BOULDIN Justice.

The action was for malicious prosecution in the institution of a civil suit.

This court has aligned itself with the courts of other jurisdictions holding such action may be maintained, although no attachment of the person or seizure of property was had in the suit complained of. Peerson v. Ashcraft Cotton Mills et al., 201 Ala. 348, 78 So. 204, L.R.A.1918D, 540. See also, Glidden Co. et al. v. Laney, 234 Ala. 475, 175 So. 296; 34 Am.Jur. p. 708, and note 15.

The sole question for review on this appeal is a ruling sustaining defendant's demurrers to Count "A" of the complaint. The demurrers do not challenge the authority of Peerson v. Ashcraft Cotton Mills, supra, but go to the sufficiency of such complaint in this form of action.

The pertinent portion of Count A reads: "Heretofore on to-wit May 15, 1938, the defendant's agents, servants or employees while acting within the line and scope of their employment as such, maliciously and without probable cause therefor caused a suit to be instituted against the plaintiff in the Third Division Municipal Court of Birmingham, Alabama which said suit before the commencement of this action, has been judicially investigated and prosecution of said suit ended so far as plaintiff is concerned and plaintiff discharged from further appearance with reference to same."

Among the grounds of demurrer assigned was this: "(c) Said count fails to allege a termination of the original action in favor of the present plaintiff."

The necessary elements of an action for malicious prosecution are well stated in 34 American Jurisprudence, p. 706, § 6, in these words: "§ 6. Generally.--Notwithstanding what is said in some cases of a distinction between actions for criminal prosecutions and civil suits, both classes of actions at the present day require substantially the same elements. An action for maliciously instituting a civil suit requires not less for its maintenance than an action for a malicious prosecution of a criminal proceeding. In general, to authorize the maintenance of an action for malicious prosecution, the following elements must be shown: (1) the institution or continuation of original judicial proceedings, either civil or criminal; (2) by, or at the instance of, the defendant; (3) the termination of such proceedings in plaintiff's favor; (4) malice in instituting the proceedings; (5) want of probable cause for the proceeding; and (6) the suffering of injury or damage as a result of the action or prosecution complained of."

The existence, vel non, of a good cause of action in the original suit is not to be litigated in the action of malicious prosecution. That question turns on the result of the original suit. Termination of that suit in favor of defendant therein is a condition precedent to his action for malicious prosecution...