Opinion
6 Div. 242.
November 1, 1938. Rehearing Denied November 22, 1938.
Appeal from Circuit Court, Jefferson County; C. B. Smith, Judge.
Action for damages for malicious prosecution by Isaiah Ramsey against the American Discount Company. From a judgment for plaintiff, defendant appeals.
Affirmed.
Graham Wingo, of Birmingham, for appellant.
It appears that W. F. Green Motors, an automobile dealer, sold an automobile to one Isaiah Ramsey, or a person who represented himself to be Isaiah Ramsey, taking a lease sale contract and note for a part of the purchase price. The seller then sold and transferred said contract and note to American Discount Company. When the first installment fell due and was not paid a representative of American Discount Company contacted appellee Ramsey and was told by appellee that he had not signed the note. After appellant's representative had taken appellee to the place of business of the seller for purpose of identification, and receiving information from an employe of the seller that appellee was present when the automobile was bought and after some unsuccessful effort to get appellee to sign his name for purpose of comparison, appellant, upon advice of its attorney, instituted suit on the note against appellee. The trial in said suit resulted in a verdict for the defendant (appellee here), whereupon appellee instituted this suit on alleged malicious prosecution of the suit on the note. The defendant (appellant) requested the general affirmative charge, in varying forms which were refused by the court.
One purchasing a note purporting to be signed by another is not liable in damages for malicious prosecution by reason of the institution of suit on such note against the purported maker. Peerson v. Ashcraft Cot. Mills, 201 Ala. 348, 78 So. 204, L.R.A. 1918D, 540; Glidden Co. v. Laney, 234 Ala. 475, 175 So. 296. There can be no recovery for malicious prosecution of a civil action where there is no interference with the property of defendant unless want of probable cause is palpable. Authorities, supra.
Perry Powell, of Birmingham, for appellee.
Under the facts of this case the question of probable cause was properly submitted to the jury. Peerson v. Ashcraft Cot. Mills, 201 Ala. 348, 78 So. 204, L.R.A. 1918D, 540; Glidden Co. v. Laney, 234 Ala. 475, 175 So. 296.
Despite the strong reasons, against such a conclusion, given by Mr. Justice Mayfield in his dissenting opinion in the case of Peerson v. Ashcraft Cotton Mills et al, 201 Ala. 348, 78 So. 204, L.R.A. 1918D, 540, it is now the definitely established and approved law of this State that "even in the absence of an arrest of his person or a seizure of his property, the successful defendant has an action against [the] plaintiff who has proceeded against him to his damage in a civil action maliciously and without probable cause." Peerson v. Ashcraft Cotton Mills et al., supra; Pickens v. Hal J. Copeland Grocery Co., 219 Ala. 697, 123 So. 223; Glidden Co. et al. v. Laney, 234 Ala. 475, 175 So. 296.
The above pretty well concludes any remarks necessary for us to make in disposing of this appeal.
It is without dispute that appellant prosecuted a suit against appellee on a note with which appellee had no connection whatever.
Whether or not appellant had "probable cause" for believing appellee to have signed the note in question was a matter in dispute in the evidence. It was properly, and under correct instructions, left by the learned trial court to the jury for solution. Glidden Co. et al. v. Laney, supra.
All the evils in allowing a suit such as the present to succeed were pointed out by Mr. Justice Mayfield in his dissenting opinion, supra. They were answered and discounted to the satisfaction of our Supreme Court in the majority opinion by Mr. Justice Sayre in the same case, Peerson v. Ashcraft Cotton Mills et al., cited. And the holding announced, later, fully approved. Pickens v. Hal J. Copeland Grocery Co., supra.
We have nothing to do but follow. Code 1923, § 7318.
The judgment is affirmed.
Affirmed.