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McKenney v. Jack Eckerd Company

Supreme Court of South Carolina
Jan 21, 1991
304 S.C. 21 (S.C. 1991)

Summary

In McKenney, the South Carolina Supreme Court abandoned the minority rule previously followed by South Carolina courts and adopted the majority rule holding "where an accused establishes that charges were nolle prossed for reasons which imply or are consistent with innocence, an action for malicious prosecution may be maintained."

Summary of this case from Salley v. Myers

Opinion

23316

Heard October 4, 1990.

Decided January 21, 1991.

Stephen John Henry of Taylor, Stephenson and Henry, Greenville, for petitioner. William M. Grant, Jr. and H. Sam Mabry, III of Haynsworth, Marion, McKay and Guerard, Greenville, for respondent.


Heard Oct. 4, 1990.

Decided Jan. 21, 1991.


We granted certiorari to review the Court of Appeals decision in McKenney v. Jack Eckerd Co., 299 S.C. 523, 386 S.E.2d 263 (Ct.App. 1989).

We reverse and remand.

FACTS

Petitioner, Ronald McKenney (McKenney), issued Respondent, Jack Eckerd Co. (Eckerd), a check for $3.55. Due to a bank error, the check was returned to Eckerd marked "insufficient funds." Shortly thereafter, the bank notified Eckerd of its error. Approximately one month later, Eckerd swore out a fraudulent check warrant against McKenney.

When the case was nolle prossed, McKenney instituted a malicious prosecution suit against Eckerd. The trial court granted Eckerd summary judgment, holding that a nolle prosse is not sufficient termination of a criminal prosecution to support an action for malicious prosecution. The Court of Appeals affirmed emphasizing, however, its decision was mandated by prior opinions of this Court.

DISCUSSION

In an action for malicious prosecution, the plaintiff must establish that the criminal proceeding was terminated in his or her favor. See, e.g., Ruff v. Eckerd Drugs, 265 S.C. 563, 220 S.E.2d 649 (1975). The minority rule, followed by South Carolina, holds that entry of a nolle prosse is not such a termination. Smith v. Shackleford, 10 S.C.L. 1 (Nott McCord 36) (1817); Harrelson v. Johnson, 119 S.C. 59, 111 S.E. 882 (1922); Mack v. Riley, 282 S.C. 100, 316 S.E.2d 731 (Ct.App. 1984).

The majority rule holds that entry of a nolle prosse is sufficient, provided it is entered under circumstances which imply or are consistent with innocence of the accused. See, 54 C.J.S. Malicious Prosecution § 56 (1987); 52 Am. Jur.2d Malicious Prosecution § 35 (1970).

We find the majority rule, which accords with Restatement (Second) of Torts § 660 (1976), to be sound. Accordingly, we hold that, where an accused establishes that charges were nolle prossed for reasons which imply or are consistent with innocence, an action for malicious prosecution may be maintained.

We expressly overrule all prior decisions of this Court and the Court and Appeals, to the extent they are inconsistent with this opinion.

The judgment below is reversed and the case remanded for further proceedings.

Reversed and remanded.

GREGORY, C.J., and HARWELL, FINNEY and TOAL, JJ., concur.


Summaries of

McKenney v. Jack Eckerd Company

Supreme Court of South Carolina
Jan 21, 1991
304 S.C. 21 (S.C. 1991)

In McKenney, the South Carolina Supreme Court abandoned the minority rule previously followed by South Carolina courts and adopted the majority rule holding "where an accused establishes that charges were nolle prossed for reasons which imply or are consistent with innocence, an action for malicious prosecution may be maintained."

Summary of this case from Salley v. Myers

In McKenney, the facts were: (1) the plaintiff's check was returned to the drug store marked "insufficient funds" due to bank error; (2) the bank notified the drug store of the bank's error; and (3) knowing about the bank's error, the drug store still swore out a fraudulent check warrant against the plaintiff; and (4) thereafter, the plaintiff's case was nolle prossed.

Summary of this case from Salley v. Myers

In McKenney, the plaintiff paid the drug store by check, and due to bank error, the plaintiff's check was returned to the drug store labeled "insufficient funds."

Summary of this case from Salley v. Myers

In McKenney v. Jack Eckerd Co., 304 S.C. 21, 402 S.E.2d 887 (S.C. 1991), the South Carolina Supreme Court held that "where an accused establishes that charges were nolle prossed for reasons which imply or are consistent with innocence, an action for malicious prosecution may be maintained."

Summary of this case from Toomer v. Horry Cnty. Police Dep't

In McKenney v. Jack Eckerd Co., 402 S.E.2d 887 (S.C. 1991), the South Carolina Supreme Court adopted the majority rule that where criminal charges are dismissed for reasons consistent with the innocence of the accused, there is sufficient termination upon which to case the action for malicious prosecution.

Summary of this case from Zimbelman v. Savage

In McKenney v. Jack Eckerd Company, ___ S.C. ___, 402 S.E.2d 887 (1991) the court ruled that when an accused establishes the charges were nolle prossed for reasons that imply or are consistent with innocence, an action for malicious prosecution may be maintained. Under South Carolina law, the supreme court decision should be applied retroactively because the court only modified an existing cause of action rather than creating a new tort. See, Toth v. Square D Co., 298 S.C. 6, 377 S.E.2d 584 (1989).

Summary of this case from Pritchett v. Lanier
Case details for

McKenney v. Jack Eckerd Company

Case Details

Full title:Ronald McKENNEY, Petitioner v. JACK ECKERD COMPANY, Respondent

Court:Supreme Court of South Carolina

Date published: Jan 21, 1991

Citations

304 S.C. 21 (S.C. 1991)
402 S.E.2d 887

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