Ward v. Allen
| Decision Date | 18 December 1942 |
| Citation | 11 So.2d 193,152 Fla. 82 |
| Parties | WARD v. ALLEN. |
| Court | Florida Supreme Court |
Rehearing Denied Jan. 20, 1943.
Appeal from Circuit Court, Pasco County; John U. Bird Judge.
W. K Zewadski and Wm. C. Pierce, both of Tampa, for appellant.
W. Kenneth Barnes, of Dade City, for appellee.
At the conclusion of the introduction of plaintiff's testimony and of certain evidence filed by stipulation, a motion of the defendant for a directed verdict was granted. From the consequent judgment appeal was taken.
The action was one for malicious prosecution of the plaintiff on a charge of arson. It was established by the testimony that the defendant, then sheriff, filed an affidavit before the county judge setting out that the plaintiff 'did wilfully and maliciously burn in the night time a certain building erected for public use, to-wit: a certain bath house and dance hall the property of one E. F. Flicker.' A warrant was thereupon issued for the arrest of the plaintiff and he was on the same day apprehended by the defendant. Later the state attorney filed an information against the plaintiff who was tried and acquitted by the jury.
To succeed in his suit it was plaintiff's burden to prove: (1) the instigation of the criminal proceeding by the defendant; (2) its termination in favor of the plaintiff; (3) the exercise of malice by the defendant; (4) want of probable cause for the prosecution; and (5) damage. Duval Jewelry Co. v Smith, 102 Fla. 717, 136 So. 878. As we understand our former decision these elements must concur and the failure to establish any one of them by a preponderance of the evidence would be good ground for the granting of a motion for a verdict favoring the defendant.
Without question the prosecution was prompted by the defendant and, too, there can be no doubt of plaintiff's acquittal. The affidavit of the sheriff, the warrant based on it and the verdict were filed by agreement of counsel. There was sufficient evidence of malice on the part of the defendant and damage to the plaintiff to have withstood the motion so far as those essential elements were concerned.
One of the ingredients necessary to a recovery in a claim of this character, however, was not established, namely, the lack of probable cause to justify the charge and trial. It was definitely shown that the prosecuting officer filed his information bearing the usual affidavit 'that the allegations as set forth * * * [were] based upon facts that [had] been sworn to as true and which if true [constituted] the offense * * * charged.'
We have read carefully all of the testimony in the case and have failed to find in it proof that there was lack of probable cause for the issuance of a warrant by the county judge commanding the arrest of the plaintiff or for the filing of an information by the state attorney charging him with the commission of arson.
It is true that a prosecution inspired by malice would take the same course and that the facts that an official issued a warrant and another official instituted the criminal proceeding would not, in thermselves, show that there was probable cause to charge a person with the commission of crime. When one who has had the...
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