Williams v. Confidential Credit Corp., 59-3

• Decision Date: 05 October 1959
• Docket Number: No. 59-3,59-3
• Citation: 114 So.2d 718
• Parties: Roosevelt WILLIAMS, Appellant, v. CONFIDENTIAL CREDIT CORPORATION, a Florida corporation, Appellee.
• Court: Florida District Court of Appeals

Page 718

114 So.2d 718

Roosevelt WILLIAMS, Appellant, v. CONFIDENTIAL CREDIT CORPORATION, a Florida corporation, Appellee.

No. 59-3.

District Court of Appeal of Florida Third District.

Oct. 5, 1959.

William M. Burton, Jr., and Charles H. Wakeman, Jr., Miami, for appellant.

Courshon & Courshon and Alan R. Lorber, Miami Beach, for appellee.

PEARSON, Judge.

The plaintiff in an action for malicious prosecution appeals from a summary final judgment for the defendant. The judgment was entered upon the complaint, answer and two affidavits submitted by the defendant.

The complaint alleges that the defendant's agent appeared before a justice of the peace and falsely and maliciously charged the plaintiff with having unlawfully concealed and transferred out of the State of Florida certain personal property upon which the defendant held a mortgage. The complaint further alleged that a warrant was issued upon the charge made and that the defendant was taken into custody by the police department of Memphis, Tennessee. It is then alleged in the complaint that the plaintiff was brought before the General Sessions Court of Shelby County, Tennessee and acquitted of the charges contained in the warrant. To this complaint the defendant filed a general denial and two affirmative defenses. The first affirmative defense alleges that the defendant acted in good faith and upon the advice of its attorney. The second affirmative defense alleges that the defendant acted upon the advice of the justice of the peace after a full disclosure to said justice of the peace.

The first affidavit offered in support of defendant's motion for summary judgment was the affidavit of its president setting forth that: 1) a certain Roosevelt L. Williams (it is noted that the plaintiff in this cause is identified as Roosevelt Williams) was indebted to the defendant corporation, and that as security for said debt the defendant held a mortgage on certain household furnishings, 2) the said debtor disappeared from the State of Florida, 3) the account was turned over to its attorney for collection, 4) said attorney determined that the debtor was a resident in the City of Memphis, Tennessee, at a certain address and that attempts were made to contact said debtor by letters directed to the Memphis address (it is noted that the letters were addressed to 'Roosevelt Williams'), and 5) no reply was received from the letters.

The second affidavit was that of the attorney for the defendant. He set forth the investigation that he had made in order to trace the debtor to the supposed address in Memphis, Tennessee, and the reasons that he had for believing that the person located in Memphis, Tennessee, was the debtor.

There can be no doubt that the plaintiff's complaint alleged sufficient facts to state a prima facie case. The question therefore is whether the defendant's two affidavits stated sufficient facts to preclude the existence of the cause of action. The law applicable to this problem has been very well stated in a dissenting opinion written by Judge Horton in Mitchell v. Time Finance Service, Inc., Fla.App.1958, 102 So.2d 733. As therein set forth, the burden of proving, at the trial, a lack of probable cause would be upon the plaintiff-appellant. Ward v. Allen, 152 Fla. 82, 11 So.2d 193; Glass v. Parrish, Fla.1951, 51 So.2d 717. Here, the defendant-appellee has undertaken to show that lack of probable cause could not exist because a) its good faith, demonstrated by its investigation, b) it acted upon the advice of its attorney, c) it acted upon the advice of a justice of the peace. Good faith is an element of probable cause but it is not always determinative. People vary in the degree of their credulity...