Ventress v. Rosser
| Decision Date | 02 October 1884 |
| Parties | VENTRESS v. ROSSER. |
| Court | Georgia Supreme Court |
September Term, 1884.
[Jackson, C J., did not preside, on account of providential cause.]
1. Where to a declaration containing three counts, based respectively on malicious prosecution, malicious arrest and slander, the record shows that three pleas were filed, the first, a plea of not indebted, as if to an action on a contract; the second, a plea of justification; and the third an amendment and enlargement of the second, a verdict for the defendant was sufficient, without specifying on which plea it was founded, there being, in fact, but one legal plea.
( a. ) Where an action was brought for malicious prosecution, malicious arrest and slander, a plea that the defendant was not indebted, and did not undertake and promise in manner and form as charged by the plaintiff, was not a plea of the general issue, and amounted to nothing.
( b. ) The plea of justification, as amended, was sufficient.
( c. ) If there had been more than one plea semble, that the plaintiff, when the jury returned a verdict for the defendant, should have asked that they be remanded and required to state upon which plea it was founded.
2. Where it does not appear that any objection was made to the admission of testimony when offered, it will be presumed that none was, in fact, made, and a new trial will not be granted because of its admission.
( a. ) Under a plea of setting out specifically the circumstances from which the existence of probable cause of the prosecution and arrest might be inferred, and denying malice, it was admissible to show that counsel and the solicitor general of the circuit advised the prosecution upon defendant's stating to them substantially the same facts testified to by him on the trial; and also other matters going to show that he acted without malice and with probable cause.
3. In order to recover, it must appear that the prosecution and arrest and the charge leading to them was made without probable cause and with malice. Malice may be inferred from a total want of probable cause, but want of probable cause cannot be inferred from malice; and the inference arising from a total want of probable cause may be rebutted by proof. This want is a question for the jury.
( a. ) Actions for malicious arrest are strictly guarded. The circumstances under which they may be maintained are accurately stated, and they are never encouraged except in plain cases.
( b ) Under a plea to an action for malicious prosecution and malicious arrest, setting up that the defendant acted with probable cause and without malice in making the accusation and causing the arrest, it was not incumbent on him to prove the charge set up in the declaration; and the court correctly refused to charge that if he failed to do so, the plaintiff would be entitled to a verdict.
( c. ) The verdict was supported by the evidence, and there was no error in the charge which will require a new trial.
Malicious Prosecution. Malicious Arrest. Slander. Pleadings. Justification. Verdict. Evidence. Before Judge FORT. Macon Superior Court. May Term, 1884.
Charles T. Ventress brought suit against James N. Rosser. The declaration contained three counts, respectively, for malicious prosecution, slander and malicious arrest. The three alleged grievances grew out of one transaction, namely, that defendant, having had certain money stolen from him, charged plaintiff with the larceny, caused his arrest and prosecuted him therefor.
The defendant filed the following plea:
" And now comes the defendant, and for plea and answer says he is not indebted, in manner and form, as set forth in said suit, and did not undertake and promise, as alleged therein, and is not guilty of the charges therein set forth."
Defendant subsequently filed a plea, in which he admitted that he did institute the criminal proceedings alleged by plaintiff, but denied that he did so maliciously. He alleged that what he did was, as he believed, in the prosecution of his legal rights; that a sum of money had been stolen from him, and there were facts and circumstances pointing to the guilt of plaintiff, as defendant in good faith believed; that, prompted by these, and under the advice of counsel, he acted as he did.
Still later, the defendant amended his pleadings, amplifying the allegations just set forth, and setting out, in brief, the following as the facts under which he acted: Plaintiff was employed by him as a clerk, and had no means; he slept in the store alone, and he alone knew of the combination of defendant's safe; $1,100.00 were taken from the safe at night; there was no breaking and entering, but the larceny was committed by some one in the store; plaintiff had no means of acquiring money except his wages; after the larceny, he was found in possession of $120.00, which corresponded with some of the money lost; he also had new clothes and other articles; on the day previous to the arrest, he told the defendant that he intended to leave. He also asked why defendant seemed to be " inquiring," when the latter had been careful not to mention his loss; and when called on to explain his possession of the money and property, the plaintiff could not do so satisfactorily. On these facts and the advice of counsel, he acted.
It is unnecessary to detail the evidence. It was conflicting. Plaintiff denied all connection with the larceny, explained his possession of money and other property by reason of a sale of goods he had made prior to that time; and showed that he had been arrested, and that two indictments had been preferred against him and returns of " no bill" made.
The evidence for the defendant tended, in substance, to establish his special plea.
The jury found a general verdict for the defendant. Plaintiff moved for a new trial, on the following grounds:
(1.) Because verdict was contrary to law and evidence, and because it should have shown on which of the three pleas it was found.
(2.) Because the evidence did not sustain the plea of justification.
(3.) Because the verdict was contrary to law.
(4.) Because the court admitted in evidence the testimony of R. G. Ozier and C. B. Hudson, after the plea of justification was filed by the defendant; and allowed the defendant to testify as to matters going to show by his acts and declarations that he acted without malice and with probable cause, after taking the opening and conclusion, and after filing the plea of justification. [The testimony of Ozier and Hudson was to the effect that the former was an attorney and the latter the solicitor general of the circuit, and that upon a statement made to them by defendant, which was substantially the same as the facts testified by him on the stand, they advised him to prosecute the plaintiff.]
(5.) " The court, erred in his charge to the jury (after the plea of justification) that the onus was on the plaintiff; before the plaintiff could recover, he must show a prosecution with malice and without probable cause." [This ground is certified with the others, but on examining the entire charge in the record, it appears that the court charged as follows: ...
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