Opinion
June 13, 1952.
Appeal from the Circuit Court for Dade County, Vincent C. Giblin, J.
Choate Sinclair, Miami, for appellant.
Hubbard Carr, Miami, for appellee.
The appellee brought an action against the appellant for malicious prosecution and was awarded a judgment.
The appellant who was the president of a corporation that employed appellee executed an affidavit before a Justice of the Peace charging the appellee with larceny of a certain amount of money belonging to the company. A warrant issued; the appellee was arrested; and the prosecution ended in his favor.
It is contended that there was a failure on the part of the plaintiff to prove that the defendant actually commenced the prosecution. To decide the point requires but a brief exploration of the facts, the material features of which are not in dispute.
The appellant argues through his counsel that he never intended to do more than start a civil proceeding in behalf of the company to collect what the plaintiff owed. In the trial of the civil action he testified that the debt consisted of several items not necessary to be detailed here, and that the plaintiff had told him "in many instances * * * he would get it cleared up * * *" as soon as he sold some of his property. In reply to questions asked by the court he repeated the statement that the plaintiff had admitted the debt and frequently promised to pay it. This testimony is very significant when considered with the activities of the defendant at the time he obtained the warrant. The affidavit on which the warrant was based was regular on its face, but he insisted that he had no idea of instituting a criminal prosecution and that the whole affair was a mistake due to the unauthorized action of the Justice of the Peace, or some one in his office, in filling out the blanks in the affidavit after the appellant had signed his name and departed, believing he had only begun an action to recover the debt.
The whole tale is unreasonable and the jury was thoroughly justified in discarding it.
In the first place it is obvious that some one in the office of the Justice of the Peace was given sufficient information upon which to base the charge of theft, and there is no reason to believe it was any person other than the defendant. In the second place, the appellant cannot escape responsibility on the ground that the affidavit was invalid because the formal language setting out a charge of larceny was inserted after he had affixed his signature.
Even though the instrument may have been a mere blank form at the time he signed it, he would still be responsible, because bearing his signature, it carried implied authority to the one to whom he intrusted it to complete the paper; and certainly the effect upon the plaintiff of the process the defendant thus set in motion was precisely the same as if the paper had been complete before it was signed.
So we think the defendant was proved to have instigated the prosecution by means of the affidavit, and that he cannot relieve himself of liability for that act by the bald statements that he intended only to collect the debt in a civil action, and that the affidavit was of no account anyway because of the manner of execution.
Even were we to assume, for the moment, that he was correct with respect to his intention and the efficacy of the affidavit, we still could not rule for him because it was definitely established that he afterward continued the action, and such is sufficient to satisfy this prerequisite of a charge of malicious prosecution. After he caused the criminal process to be set in motion, he gave it momentum by his attitude at the preliminary hearing. Meraz v. Valencia, 28 N.M. 174, 210 P. 225. This is evident from the record of that proceeding. The question arose at the outset about the exact amount of the supposed theft, and there was a colloquy on the subject between the Justice of the Peace and the appellant. Finally the appellant was asked by the court: "What is the amount you are charging him as having stolen?" The appellant replied: "$105.82." The court then said "All right, sir. Make the Warrant read, $105.82. Is that correct?" and the appellant answered: "That's correct." So the jury that tried the action for malicious prosecution had abundant reason to find that the appellant not only started the prosecution, but later continued it.
The appellant has confined his questions to: (1) the invalidity of the affidavit, (2) the failure of the court to charge the jury directly that one indispensable element is the commencement by the defendant of the criminal prosecution, and (3) the excessiveness of the verdict.
We have disposed with the first of these and now we pass to the second. The appellant complains of the failure of the judge to give his requested charge defining the various components of a cause for malicious prosecution or "otherwise [to] instruct the jury to the effect that one of the elements required to be proved * * * was that it was the defendant who had commenced the criminal proceeding." We have already decided that this feature of the case was proved. We do not find the judge's charges as a whole subject to such criticism, or that because of them the jury could have gone astray in deciding the issues. The appellant claims the court was at fault for not specifically telling the jury that the plaintiff was required to establish by a preponderance of the evidence the commencement of the action by the defendant, although his general charge contained the language: "it must be shown by a preponderance of evidence that the plaintiff was prosecuted * * *," and so forth. The distinction is so fine as to leave us unconvinced that any harmful error was committed by the trial judge. There was certainly no suspicion, even, that the proceeding in the court of the Justice of the Peace was inspired by any one save the defendant. In asserting that he intended the action to be civil instead of criminal, he doesn't deny that whatever was signed to set in motion the processes of the court was signed by him. Appellant, as an afterthought, claims that the affidavit wasn't much good after all, but good or bad, it was his, and for the resultant damage to plaintiff, he was fully accountable.
As for the amount of the verdict, we are not disposed to disturb it. We find no occasion either to grant a remittitur or remand the cause for trial on that issue.
We join the trial judge in approving what the jury found.
Affirmed.
SEBRING, C.J., and ROBERTS and MATHEWS, JJ., concur.
TERRELL and CHAPMAN, JJ., concur in part and dissent in part.
We agree with the opinion, except the amount of the verdict, which we think should be reduced by $5,000.