Twist v. Mullinix

• Decision Date: 18 December 1916
• Docket Number: 47
• Citation: 190 S.W. 851,126 Ark. 427
• Parties: TWIST v. MULLINIX
• Court: Arkansas Supreme Court

190 S.W. 851

126 Ark. 427

TWIST v. MULLINIX

No. 47

Supreme Court of Arkansas

December 18, 1916

Appeal fro Crittenden Circuit Court; J. F. Gautney, Judge; reversed.

STATEMENT BY THE COURT.

J. W Mullinix, who, at that time lived in Mississippi, was employed by Ira F. Twist to manage his plantation in Arkansas. After a few months Twist became dissatisfied with Mullinix as manager, claiming that he was incompetent, and discharged him.

Mullinix after his discharge, returned to Mississippi, leaving his family and household effects temporarily in a house that he occupied at Earle, Arkansas. Twist claimed that upon investigation he ascertained that Mullinix had misappropriated and converted to his own use funds in his hands belonging to Twist amounting to something more than $ 200.00, and after consultation with an attorney, and upon his advice, he made an affidavit before a justice of the peace charging Mullinix with the embezzlement of $ 200, and also at the same time instituted a civil suit for that sum and had an attachment issued and levied upon Mullinix's household goods.

Mullinix returned to Arkansas to defend the attachment suit and was arrested on the warrant charging him with embezzlement. He was allowed to go at liberty until the next day, when the attachment suit was tried before the justice.

The civil suit resulted in a judgment for Mullinix. After the civil suit was disposed of, and while Twist and his attorney were present, the attorney for Mullinix called the justice's attention to the criminal case and told the court that the facts were the same in the two cases, and moved the court that the criminal case be dismissed and Mullinix discharged. The court sustained the motion, no objection being made to same by Twist or his attorney.

Mullinix afterwards instituted this suit against Twist for malicious prosecution. There was a verdict in favor of Mullinix in the sum of $ 20,000.00. Twist moved for a new trial.

The court had a remittitur entered for the sum of $ 15,000.00, to which Mullinix agreed. The motion for new trial was overruled and final judgment was rendered in Mullinix's favor in the sum of $ 5,000.00, from which this appeal comes. Other facts will be stated in the opinion.

Judgment reversed and cause remanded.

Hughes & Hughes, Allen, Humphrey & Converse, for appellant.

Berry & Wheeler and H. H. Barker, of counsel.

1. The criminal prosecution was not abandoned. 1 Corpus Juris, 5-7; 1 Cyc. 4; 24 Cal. 339; 70 Ark. 538; 12 Cyc. 379; 73 Hun. 547; 34 S.E. 531; 38 Kans. 570.

2. There is no legal evidence in the record that the criminal prosecution before the justice was dismissed. Freeman on Judg., § 38; Wigmore on Ev., §§ 2425-2450; 23 Cyc. 1534; 10 Wend. 325; 4 Ark. 236; 7 Ill.App. 369; 33 Ark 485; 40 Id. 166; 87 Id. 441; 51 Id. 317; Kirby's Digest, §§ 4562, 4604, 2149, 4616-17.

3. But if the evidence proves the dismissal the order of the justice was illegal and void. 23 Cyc. 1059; 30 S.E. 558; Kirby's Digest, §§ 2130, 2137; 104 P. 468.

4. If the proof shows a termination of the criminal case it was brought about by plaintiff and such termination will not support a malicious prosecution suit. 36 S.E. 470; 10 Cush. 281; 144 Mass. 431; 73 N.H. 384; 123 Cal. 35; 2 L. R. A. (N. S.) 945; 43 N.J.L. 57.

5. There was probable cause for instituting the criminal case. The burden was on plaintiff to prove malice and want of probable cause. 32 Ark. 166, 765; 63 Id. 439; 33 Id. 316; 107 Id. 74; 96 Id. 325; 71 Id. 351; 42 Minn. 49.

6. Where defendant makes a full, fair and honest statement to counsel and acts thereon, he is not liable. 107 Ark. 74; 122 Ark. 382; 100 Ark. 316; 71 Id. 351. The finding of an indictment by the grand jury is prima facie evidence of probable cause. 26 Cyc. 40. See also notes to 26 Am. St. Rep. 158.

7. The damages were so excessive as to show passion and prejudice. 19 Cyc. 372.

8. Defendant was taken by surprise and new evidence was discovered. 66 Ark. 612.

9. The verdict is clearly against the weight of the evidence and was disapproved by the court below. It should be set aside. 47 Ark. 567; 94 Id. 566; 98 Id. 334; 100 Id. 599; 112 Tenn. 463; 85 Id. 387; 102 Id. 702; 113 Ga. 453; 16 Wash. 288; 17 Kans. 172.

Caruthers Ewing, H. C. Williamson, Jr., and A. B. Shafer, for appellee.

1. The granting or refusing a new trial on the ground of surprise, newly discovered evidence, etc., is a matter addressing itself to the sound discretion of the trial court. 18 Ark. 570; 26 Id. 496; 85 Id. 33; 103 Id. 589; 118 Id. 277; 29 Cyc. 1009-10. The so-called newly discovered evidence only was valuable, if at all, to impeach by contradiction the testimony of Mullinix as to 100 bushels of seed. Such testimony is not ground for new trial. 90 Ark. 435; 97 Id. 92; 99 Id. 407; 114 Id. 472.

2. The original prosecution was finally determined and ended. It was dismissed by defendant's consent. 4 Mackey's Rep. 65; 2 Johnson 204.

3. It is an invasion of the province of the jury to set aside a verdict that is not clearly or decidedly against the evidence, or the weight thereof. 10 Ark. 138; 13 Id. 339; 17 Id. 385; 20 Id. 443; 47 Id. 562; 94 Id. 556; 98 Id. 334; 94 Id. 566. The Tennessee rule is not a sound one. 14 Pl. and Pr. 770, note; 29 Cyc. 824; 58 Kans. 447; 48 P. 579; 1 Sumner, 451; 73 Ga. 630; 108 Id. 792; 137 Mass. 315; 24 S.C. 593; 69 Id. 160; 3 Ore. 178; 108 Mich. 446; 102 Va. 622; 134 N.C. 53; 107 A.D. 254.

4. When the criminal prosecution was dismissed finally, the termination thereof justified the bringing of the suit for malicious prosecution. 4 Mackey Rep. 65; 129 Tenn. 614.

5. The finding of an indictment affords prima facie proof of probable cause. 71 Ark. 351; 94 Id. 433; 100 Id. 316.

6. Suing out an attachment without good reason and honest belief is ground for an action. 63 Ark. 387; 73 Id. 437.

7. Probable cause exists only when a reasonably prudent, dispassionate man would believe on the facts that the accused was guilty. 32 Ark. 166, 177; 69 Id. 439; 71 Id. 351; 82 Id. 252.

8. Malice may be inferred from want of probable cause. 32 Ark. 166; 37 Id. 160; 63 Id. 387; 94 Id. 433; 100 Id. 316.

9. Advice of counsel is a defense only when a full and fair statement of facts is made and advice sought in good faith. 71 Ark. 351; 73 Id. 437; 100 Id. 316; 107 Id. 74; 18 L. R. A. (N. S.) 65 and note.

10. If untruthful statements are made to counsel, the advice is no protection. 66 Neb. 782; 92 N.W. 1014; 68 N.E. 179; 37 Id. 593; 84 N.W. 574. See also 73 Ark. 437; 76 Id. 41; Newell on Mal. Pros., p. 325, 22.

11. The verdict is not excessive. 66 Ill.App. 173; 97 A.D. 416; 50 F. 515; 203 Mo. 295; 18 W.Va. 1; 73 Tex. 12; 139 Ala. 217; 131 Ind. 223; 67 Wisc. 350; 74 Hun. 284.

WOOD, J. HART, J. dissenting.

OPINION

WOOD, J. (after stating the facts).

Before appellee could maintain his action for malicious prosecution it was necessary for him to show that the original proceeding instituted against him had been legally terminated. "It is a sufficient termination of the original proceeding to serve as a basis for an action for malicious prosecution that plaintiff was discharged, or the original proceeding was dismissed at a preliminary hearing, or before trial, as upon an abandonment of the proceedings." 26 Cyc. 55 et seq. 59.

Appellant, while conceding that an abandonment of the original proceedings by Twist would be a sufficient termination of the original proceedings, nevertheless contends that the criminal prosecution was not abandoned. But, giving the testimony its strongest probative value in favor of the appellee, it was sufficient to warrant a finding that Twist had abandoned the criminal prosecution instituted by him against the appellee before the justice of the peace. Oral proof of what took place before the justice was competent to show an abandonment. The testimony shows that after the verdict had been returned in the civil action an attorney for the appellee stated that the facts were about the same in the two cases and moved the court to dismiss the criminal charge, and that the court dismissed that charge and released the appellee. Appellant Twist and his counsel were present and offered no objection to this proceeding. When such affirmative action was being taken by the court in the presence of Twist and his counsel with reference to the prosecution that had been instituted by him it was incumbent upon him at least to object to the dismissal. He was called upon to speak then, and having failed to do so he cannot set up that the prosecution was not abandoned because the same facts were afterward presented by him to the grand jury upon which an indictment was returned.

The proceedings before the grand jury were entirely independent of the proceedings before the justice of the peace. If the justice had held appellee to answer to the grand jury on the charges instituted against him by Twist then the proceedings before the grand jury might be regarded as a continuation of the original prosecution. But when the justice dismissed the prosecution and discharged the appellee without objection or protest from appellant, that was an abandonment of the proceedings before the justice. See Costello v. Knight, 4 Mackey 65.

This is not like a case where a criminal prosecution is dismissed by mutual consent. Here the testimony tended to show that the facts upon which the prosecution was based had been developed in a civil action, and the appellee, in asking the justice to dismiss the prosecution and to discharge him, was but contending that the cause had been heard and that he was entitled, as a matter of legal right, to a judgment dismissing the prosecution.

There was no mutual consent between the appellee and the appellant that the prosecution should be...