Summary
In Grenada Coco Cola Co. v. Davis, 168 Miss. 826, 151 So. 743, this Court said: "The so-called `bad check law' does not cover the obtaining of goods where the goods had already been delivered, had passed completely out of the possession of the seller and away from his hands and premises in a previously completed transaction or transactions, although those transactions may have been at previous hours on the same day. There must be an exchange for the check at the time of delivery."
Summary of this case from Kitchens v. BarlowOpinion
No. 30952.
January 8, 1934. Suggestion of Error Overruled February 5, 1934.
1. MALICIOUS PROSECUTION.
Institution of criminal proceeding under "bad check law" would render prosecution malicious, where check was issued for goods already delivered, notwithstanding such transactions were completed at previous hours of day on which check was issued (Code 1930, sections 923-925).
2. MALICIOUS PROSECUTION.
Corporation's acting general manager who signed blank affidavit for prosecution under "bad check law" held charged with corporation's knowledge that goods for which check was issued had been delivered prior to issuance of check (Code 1930, sections 923-925).
3. MALICIOUS PROSECUTION.
Where corporation's acting general manager signed blank affidavit for prosecution under "bad check law" and sent affidavit to justice of peace who instituted prosecution, justice of peace became agent of corporation which became responsible for subsequent arrest and prosecution (Code 1930, sections 923-925).
4. ALTERATION OF INSTRUMENTS.
Where party to instrument intrusts it to another for use, with blanks not filled, such instrument so delivered carries on its face implied authority to fill up blanks necessary to perfect instrument with matter in general conformity to character of instrument.
5. MALICIOUS PROSECUTION.
Malice or wantonness held established in malicious prosecution, where corporation through its acting general manager instituted criminal prosecution under "bad check law" and check was issued for goods delivered prior to issuance of check (Code 1930, sections 923-925).
6. MALICIOUS PROSECUTION.
When creditors resort to criminal processes and to arrests under criminal charges for collection of their debts, courts will not be diligent in interfering with amounts of damages fixed by juries for malicious prosecution (Code 1930, sections 923-925).
APPEAL from Circuit Court of Yalobusha County.
Cilman Woods and Kermit R. Cofer, both of Water Valley, for appellants.
The instruction for a directed verdict for the defendants should have been given as the proof fails to show that the appellants, here, did anything to cause the arrest and prosecution of appellee.
To maintain an action for malicious prosecution the plaintiff must show that the defendant therein was responsible for the institution or continuance of the original proceedings complained of.
18 R.C.L. 17.
The proof shows that the justice of the peace concluded the law had been violated and issued a warrant for the arrest of appellee, without any one asking or advising him to do so.
One who discloses to a police officer all facts within his knowledge having a material bearing on the question of the guilt of the person suspected and who leaves it to the officer to act entirely on his own judgment and responsibility as a public officer as to whether or not there shall be a criminal prosecution is not liable in an action for malicious prosecution by reason of the erroneous conclusion of the officer that the facts warrant him in instituting a criminal prosecution.
38 C.J. 397.
The inference (of malice) is not one of law but merely a presumption of fact which may be rebutted and is one which the jury is not required to draw and which it should not draw if other facts disclosed by the evidence lead to a different conclusion.
38 C.J. 427; Vicksburg S. P.R. Co. v. Porterfield, 60 So. 652; 18 R.C.L. 31.
In an action for malicious prosecution where the facts are shown in evidence, it is error to instruct the jury that the acquittal by the court before which the plaintiff was tried and acquitted was prima facie evidence of want of probable cause.
Ray v. Patrick, 1 Miss. Dec. 162; Greenwade v. Mills, 31 Miss. 464; Whitfield v. Westbrook, 40 Miss. 311.
While there is some authority to the contrary, it has very generally been held that where a party in good faith makes a full and truthful statement of facts to a magistrate and the magistrate acts thereon and issues a warrant or does some other act which the law does not justify, mistakenly believing the facts so stated to constitute an offense, the party making the statements is not liable as for a malicious prosecution.
38 C.J. 396, 397; Chambliss v. Blau, 127 Ala. 86, 28 So. 602.
The presumption is that an officer will act within his authority.
Teal v. Fissel, 28 Fed. 851; Chambliss v. Blau, 127 Ala. 86; Krause v. Spiegle, 94 Cal. 370; Wilmerton v. Sample, 42 Ill. 254; McNeely v. Driskill, 2 Blackf. 259; Newman v. Davis, 58 Iowa 447; Gibbs v. Ames, 119 Mass. 60; Cole v. Andrews, 74 Minn. 93; Thaule v. Krekeler, 81 N.Y. 428; Oakley v. Tate, 118 N.C. 361; Schwatka v. Davidson, 70 Pa. Super. 362; Smith v. Clarke, 37 Utah 116.
The evidence of acquittal is admissible of course in showing that the prosecution has terminated favorably to the accused, but is generally held that its consideration should be limited to that purpose.
Ray v. Patrick, 1 Miss. Dec. 162; Greenwade v. Mills, 31 Miss. 464; Whitfield v. Westbrook, 40 Miss. 311; Planters Ins. Co. v. Williams, 60 Miss. 916.
John Horan, of Water Valley, for appellee.
Punitive or exemplary damages is the gist of this lawsuit. And if plaintiff was prosecuted for having given a bad check for previous purchases then the prosecution was without probable cause, and if without cause it was malicious within the meaning of the law, and plaintiff is entitled to punitive damages.
Odum v. Tally, 134 So. 163.
If H.L. Honeycutt was secretary to the company, as was testified to, and was acting within the scope of his authority, as it certainly was not disputed, when he authorized and instituted prosecution against plaintiff, then the principal is liable for his act.
Fisher v. Westmoreland, 101 Miss. 180; Mask v. Rowls, 57 Miss. 270.
Probable cause in an action for malicious prosecution is a mixed proposition of law and fact, and the want of probable cause is a circumstance from which a jury may infer malice.
Whitfield v. Westbrook, 40 Miss. 311; Vicksburg S. P.R. Co. v. Porterfield, 60 So. 652; Medlin v. Clarksdale Steam Laundry et al., 101 So. 557.
If the facts are undisputed it then becomes a question of law to be determined by the court.
Greenwade v. Mills, 31 Miss. 464; McNulty v. Walker, 64 Miss. 198; Whitfield v. Westbrook, 40 Miss. 311.
The amount of punitive damages awarded is for the jurors sound judgment in a proper case, and its award will not be interfered with unless so apparently excessive as to show passion and prejudice.
Y. M.V.R. Co. v. May, 61 So. 449; G. S.I.R. Co. v. Riley Mer. Co., 104 So. 80.
Creekmore Creekmore, of Jackson, for appellee.
This case is controlled by Odum v. Tally, 160 Miss. 797, 134 So. 163, wherein the court held that the institution of criminal proceedings under the bad check laws, if merely for the purpose of collecting a debt, would render the prosecution malicious.
The rule is well settled that the jury may infer malice from want of probable cause, and it has been said that ordinarily it does so.
38 C.J. 425; Whitfield v. Westbrook, 40 Miss. 311.
The discharge and acquittal of a party by the court before whom he was tried on the charge of larceny, is prima facie evidence of the want of probable cause for the prosecution.
Whitfield v. Westbrook, 40 Miss. 311.
The advice of unprofessional persons, not practicing lawyers, although they may be connected with the administration of the law indirectly, and although they may be magistrates or formerly may have been magistrates, is insufficient and inadmissible to show probable cause or excuse the want of it, or to establish the absence of malice, and the fact that the magistrate is also an attorney at law does not affect the operation of the rule where the advice is given not as an attorney but as a magistrate.
38 C.J. 431; Shannon v. Sims, 146 Ala. 673, 40 So. 574.
On September 29, 1931, appellee gave to appellant company a check for fifty-two dollars and eighty cents which was not paid on presentation to the bank and has never been paid. During the month of March, 1932, after several unsuccessful attempts to secure the payment of the check, appellant company placed it in the hands of a justice of the peace who was acting in the double capacity of a collection agent and officer. The collecting agent experienced a similar failure to collect after demand was made, and on March 28, 1932, the justice of the peace sent to the acting general manager of appellant company a blank form of an affidavit in criminal cases and requested that he sign and return. The acting general manager signed the blank form of affidavit, and upon its receipt the justice of the peace filled it out making a charge of felony against appellee for a violation of what is commonly called "the bad check law" (Code 1930, sections 923-925), and a warrant for the arrest of appellee was issued and executed. After his arrest appellee gave bond, and on the trial was acquitted. Subsequently, appellee sued for malicious prosecution and there was a verdict and judgment for the plaintiff, and the defendants have appealed.
The case in all its material particulars is controlled by Odum v. Tally, 160 Miss. 797, 134 So. 163. The facts as shown by appellants' own testimony were that the check was given for bottled soft drinks, all but three cases of which had been delivered to appellee's place of business on days previous to that on which the check was given, and that in the check was included two dollars and forty cents for three cases of soft drinks delivered by appellant company to appellee at the latter's place of business during previous hours of that day. In Odum v. Tally, it was held that the goods must then and there be delivered in exchange for the check and on the faith that the check was presently good. The so-called bad check law does not cover the obtaining of goods where the goods had already been delivered, had passed completely out of the possession of the seller and away from his hands and premises in a previously completed transaction or transactions, although those transactions may have been at previous hours on the same day. There must be an exchange for the check at the time of delivery. The bad check law is severe enough without extending it by construction so as to include past deliveries, to say nothing of the question of the constitutional validity of such a statute if it were so construed.
The appellant company had complete knowledge of the facts aforesaid, and the acting general manager was at the time charged with that knowledge. He therefore knew in point of law that the facts did not bring the case within the bad check law and that there was no probable cause for a criminal prosecution of appellee. And when acting for appellant company he signed the blank form of the criminal affidavit and sent it to the justice of the peace, he thereby constituted the justice of the peace as the agent of the company to fill out the blank, and appellant company is therefore responsible for the subsequent arrest and prosecution. It is true that the acting general manager now says he did not intend that the blank affidavit which he signed should be filled out for a criminal charge, but he admits that he saw that it was the form of a criminal affidavit that he signed, and knew that it was to be used in and about the identical check here in issue, and in response to a point blank interrogatory he stated that he did not know and did not care at the time what the justice of the peace was going to put into the affidavit. The situation presents an incident where it is just and deserving to apply the general rule that "where a party to an instrument intrusts it to another for use, with blanks not filled, such instrument so delivered carries on its face an implied authority to fill up the blanks necessary to perfect the same with matter in general conformity to the character of the instrument." 2 C.J., p. 1243.
Since then the facts known to appellant company were such that appellee was not chargeable with a criminal offense, and since without probable cause known to appellant company, it in legal effect instituted the prosecution and placed in motion that which caused the issuance of the warrant and arrest, it follows inevitably that the prosecution was for the purpose of using the criminal processes of the law for the collection of a debt, and, as said in Odum v. Tally, this state of facts supplies all that is necessary of the element of malice, or wantonness.
The above salient facts are of those which are either undisputed or which are supplied by the evidence introduced in behalf of appellants. Under the facts appellee was entitled to the peremptory instruction on the issue of liability; and in consequence the several errors complained of by appellants disappear; it being necessary to add only that the amount of the verdict is not mentioned in the briefs, and the amount is not such as to appear immoderate on its face. When contrary to constitutional safeguards, creditors resort to criminal processes and to arrests under criminal charges for the collection of their debts, we shall not be overdiligent in interference with the amounts of the damages fixed by juries for malicious prosecution.
Affirmed.