Cohen v. Ferguson Ex Rel. Ferguson

336 S.W.2d 949, 47 Tenn. App. 165, 1959 Tenn. App. LEXIS 129

• Court: Court of Appeals of Tennessee
• Decided: December 4, 1959
• Status: Published

Opinions

HICKERSON, J.

Howard Lee Ferguson brought this suit for malicious prosecution against J. B. Cohen. The defenses were:

1. Defendant did not prosecute nor instigate the prosecution of plaintiff.

2. Defendant had probable cause for believing that plaintiff was guilty of the criminal offense for which he was indicted and prosecuted.

3. Defendant’s actions in regard to plaintiff were not the result of malice.

After a full hearing, the jury could not agree. The parties and their attorneys, with the approval of the trial judge, entered into an agreement, by stipulation preserved in the bill of exceptions, page 300, that they would accept a majority verdict. The jury were divided seven to five. The majority were for plaintiff, and they fixed his damage at $1,000 compensatory and $500 punitive. The other five jurors were discharged pursuant to the agreement and had no part in fixing the damage.

Defendant made a motion for directed verdict at the close of all the proof and renewed the motion for directed verdict in his motion for new trial.

The trial judge overruled these motions and entered judgment on the jury verdict. Defendant appealed in error to this Court to review that judgment. There are only two assignments of error in this Court.

“1. The Court erred in overruling defendant’s Motion for Peremptory Instructions made at the close of all the proof and in refusing to direct a verdict for defendant, because there was no evidence to permit a finding by the Jury for Plaintiff or to support a verdict for him.

“2. The Court erred in overruling defendant’s motion to set aside the verdict of the Jury and the judgment entered thereon, and to direct a verdict for defendant or, in the alternative, to grant defendant a new trial, because of the grave miscondnct of the jury, as set forth in Ground Three of defendant’s Motion for a directed verdict or in the alternative for a new trial and the affidavits filed in support thereof. ’ ’

(1) To dispose of the first assignment, we must answer the following questions:

1. Was probable cause shown as a matter of law?

2. Did plaintiff show the acts of defendant in connection with the prosecution of plaintiff were done through malice?

3. Did defendant prosecute or initiate the prosecution of plaintiff?

4. Did the trial court err in refusing to direct a verdict for defendant?

The law of the case seems to be well settled. In F. W. Woolworth Company v. Connors, 142 Tenn. 678, 222 S. W. 1053, 1054, our Supreme Court clearly and concisely stated the law applicable to a suit for malicious prosecution with the citation of earlier cases of our Supreme Court to support the conclusions in the Connors case. We quote from the Connors case the rules applicable to the case on trial.

“In Kelton v. Bevins, Cooke, 90, 5 Am. Dec. 670, Judge Overton said: ‘The public interest is concerned that offenses should not go unpunished. It is no test of the impropriety of such prosecutions that defendants are acquitted. The true and legal principle is, had the prosecutor ground to think that a felony had been committed, with the information he possessed at the time of the commencement of the prosecution? If he had, he onght not to be subject to damages in this action. * * *

“ ‘To sustain an action for a malicious prosecution, there must not only be malice, but a want of probable cause. In the absence of either -of these requisites, the action falls to the ground. Hence the want of probable cause for a prosecution is the test of this action. Though malice exists, if in the estimation of a rational and dispassionate mind there be probable cause for prosecution, the action cannot be sustained. With the information that Kelton possessed, he had reasonable ground to believe that a felony had been committed. He ought not, in justice and sound policy, to be mulct in damages and costs for endeavoring to detect and punish such offenses. ’

“In the case of Raulston v. Jackson, 1 Sneed, 128, the court said: ‘ The law on this point is, and should have been so charged by the judge, that if the jury found from the proof that the defendant, at the time he instituted the prosecution, acted upon such a state of facts known to him, or derived from reliable information, as would induce a belief in the mind of a prudent, discreet man that the crime had been committed and by the person he was about to prosecute, he was not liable.

“ ‘The question is not whether the defendant is really guilty, but was there good and reasonable grounds for the prosecutor to believe he was. * * *

■ '“‘Instead of requiring direct evidence of the fact of the crime, it may certainly often happen that no crime was in fact committed, and yet the prosecutor justifiable, because of the existence of probable or reasonable, grounds to believe the criminal act bad been done, and by the accused. If men were not allowed to act upon such grounds, crimes would often go unpunished for want of prosecutors. This action is only intended to apply to cases where a criminal accusation is made against an innocent man through malice, and in the absence of even a fair and reasonable probability of its truth.’1

“In the case of Hall v. Hawkins, 5 Humph. 357, the court said: ‘Probable cause is the existence of such facts and circumstances as would excite in a reasonable mind the belief that the person charged was guilty of the crime for which he was prosecuted; that is, acting upon the facts within the knowledge of the prosecutor, if a reasonable man would believe the party guilty of the crime charged, there would exist probable cause for the prosecution.’ ”

34 Am. Jur., 732, Malicious Prosecution, Section 47, states the same rule.

“It is to he noted that the conduct of the defendant is to he weighed i/n view of what appeared to him at the time of instituting the prior proceeding, not m the light of subsequently appearing facts.” (Emphasis added.)

In Thompson v. Schulz, 34 Tenn. App. 488, 240 S. W. (2d) 252, 255, this Court said:

“The law of malicious prosecution represents an adjustment of two paramount social interests: the interest of society to prosecute the guilty, and the interest of the individual not to be prosecuted wrongfully. It is not enough that the prosecution was unfounded; it must have also been malicious and without probable cause, to impose liability on the instigator of it. Poster v. Andrews, 183 Tenn. 544, 194 S. W. (2d) 337; F. W. Woolworth Co. v. Connors, 142 Tenn. 678, 222 S. W. 1053; Restatement, Torts, Vol. 3, pp. 380-411.

“Definitions of probable cause, however differently expressed, all agree in these two essentials: (1) The prosecutor must in good faith have honestly believed the accused was guilty of the crime charged; and (2) his belief must have been reasonable — based on facts and circumstances sufficient to lead an ordinarily prudent person to believe the accused was guilty of the crime charged. The prosecutor must have made the investigation an ordinarily prudent person would have made in the circumstances. Citty v. Miller, 1 Tenn. App. 1, 4-9; Citizens Sav. & Loan Corp. v. Brown, 16 Tenn. App. 136, 138-140, 65 S. W. (2d) 851, 853; Annotations, 5 A. L. R. 1688-1695, 65 A. L. R. 225; 34 Am. Jur., Malicious Prosecution, secs. 49-51; Restatement, Torts, Vol. 3, sec. 662, Comment g, p. 406.

“Malice need not be ill will, but may be any motive other than a purpose in good faith to bring an offender to justice. Malice may be inferred from a motive to enforce payment of a debt or the doing of some other act the prosecutor wishes done. Poster v. Andrews, 183 Tenn. 544, 551, 194 S. W. (2d) 337, 340; Restatement, Torts, Vol. 3, sec. 668.”

The burden of proving malice and want of probable cause rests upon plaintiff in a malicious prosecution case. Wheeler v. Nesbitt, 24 How. 544, 16 L. Ed. 765; 34 Am. Jur. 775, 776, Malicious Prosecution, Section 123.

The authority last cited states this rule:

“The burden is always on the plaintiff to prove both malice and a want of probable cause, when an issue with respect thereto has been raised by the defendant. ’ ’

(2) Bearing in mind that the foregoing rules of law apply to the case on trial, we shall here state the information, facts, and admissions of plaintiff which were before J. B. Cohen when he called the police and had them investigate the conduct of plaintiff. We emphasize the rule that we must consider the case at the beginning. Evidence subsequent to the beginning cannot be charged to defendant. J. B. Cohen operated a metal junk yard on the eastern bank of the Cumberland River, bounded on one side by Davidson Street. There was a high wire fence around three sides of the junk yard. The other side is bounded by Cumberland River. From time to time defendant had missed articles of junk which had been wrongfully taken from his yard. His employees reported to him that plaintiff and another boy had parked their car on the back side of the junk yard on September 17,1958, about eight o ’clock in the forenoon and had gone down the outside of the back fence; had entered the junk yard near the river; and had taken away from the junk yard, without paying for it, a tire or wheel and tire from an automobile, the property of defendant.

About nine thirty o’clock on the same morning his employees reported to defendant that the same two boys had parked their car again at the same place as before ; had gone down the outside of the hack fence to the river; and had entered the junk yard from that position without the permission of defendant. Upon receiving this information, defendant called the police and asked them to make an investigation. Five or six officers, two detectives and policemen, responded to the call. Defendant and some of these officers and some of defendant’s employees saw plaintiff trying to remove a bumper from one of defendant’s junk automobile. They called for the boys to come up where defendant and the officers were. The boys came. Plaintiff had a socket wrench, ratchet, and two open-end wrenches on his person.

At that time and place and in the presence of eight or ten people, including the officers, plaintiff admitted he had taken the tire from the junk yard. He said he intended to get a car bumper and then pay defendant for it. The fact remains, however, that he entered the junk yard on the back side near the river and did not have any money on him.

Prior to the calling of the police and at the time they first answered the call, it appeared to defendant and the police officers that a crime was being committed, and this fact appears upon the uncontradicted facts and circumstances appearing at that time. Wherefore, the police took charge of plaintiff; took him to police headquarters; and arraigned him before a committing court who bound him over to the grand jury. He was indicated for an, “attempt to steal, take, and carry away certain automobile parts in a junk yard, a better description of which being to the grand jurors unknown.”

Defendant did not go before the grand jury. The only time he testified in the case was in obedience to subpoenas. He never had any conversation about the case with the Attorney General’s office. Plaintiff was acquitted on the regular trial in the criminal court.

Neither defendant, nor his employees, nor the police, knew plaintiff. None of them had any ill will towards him.

Bickford, Hansert, and Burt were trusted employees of defendant. They gave him the information which led to the calling of the police. He believed what they told him; and later defendant and the police officers personally saw plaintiff in the junk yard removing the bumper, and, as stated, heard him confess to the taking of the tire in the presence of all of them.

On all of the facts and information before J. B. Cohen when he called the police and when the police made their first investigation, there was probable cause, as a matter of law, which would lead defendant and the officers to believe that plaintiff was guilty of the crime for which he was later indicted. The burden was on plaintiff in the case on trial to prove want of probable cause. This burden was not carried by plaintiff. To the contrary, defendant went further than he was required to go in defense of himself. He proved there was probable cause by uncontradicted facts. It matters not what the proof developed on the regular trial of plaintiff in the criminal court. That was beside the point. As stated, defendant was judged by the facts, information, and circumstances as they appeared to him when he first made the investigation. Judged by that rule, defendant proved a perfect defense by showing probable canse, as a matter of law; and we so hold.

(3) Did plaintiff prove defendant acted through malice as that term is nsed in the law of malicious prosecution?

In 34 Am. Jur., 729, Malicious Prosecution, Section 45, it is said:

“If the intention to bring the accused to justice is present, and its influence is controlling, the action of the prosecutor is not malicious although it may be influenced to some extent by other and forbidden considerations. A desire to deter others from committing crime by making an example of the offender is a proper motive. ’ ’

We find no element of malice in the case on trial. Defendant merely wanted to stop plaintiff and others from taking parts from his junk yard. He had a right legally and morally to do this. Plaintiff’s case must fail because he did not prove malice. Want of probable cause and malice must concur to make out a case of malicious prosecution. Plaintiff failed to prove either.

(4) Did defendant actually prosecute or initiate the prosecution of plaintiff?

54 C. J. S. Malicious Prosecution sec. 17, p. 970, provides :

“One who causes another’s prosecution by false statements or misrepresentations, made to a police officer, with an improper motive, is liable for malicious prosecution, although he does not file a complaint or actually procure the prosecution. Where, however, he discloses in good faith, to a police officer, or other public officer, all facts within his knowledge having a material bearing on the question of the guilt of the person suspected and 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, he 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.”

The same rule is stated in Restatement of the Law of Torts, 383-384, Section 653.

‘ ‘ One who gives to a third person, whether public official or private person, information of another’s supposed criminal conduct or even accuses such other thereof, causes the institution of such proceedings as are brought by the third person. The giving of the information or the making of the accusation, however, does not constitute a procurement of the proceedings which the third person initiates thereon if it is left to the uncontrolled choice of the third person to bring the proceedings or not as he may see fit.”

Defendant brings himself squarely within this rule. He was informed that the crime was being committed. He called the police to investigate. They came promptly, six strong, and made the investigation then and there. They took the case from that time themselves. Defendant did not appear before the grand jury. As stated, he only testified when he was compelled to do so by subpoena.

Plaintiff failed to prove that defendant prosecuted him. His suit must fail for that reason.

(5) Did the trial court err in failing to direct a verdict for defendant?

Having held that plaintiff failed to prove want of probable cause and malice, and further, that he failed to prove that defendant prosecuted him, it follows that the trial judge committed reversible error when he refused to direct a verdict for defendant and dismiss plaintiff’s suit as upon a directed verdict.

That error will be corrected by this Court by directing a verdict here and the dismissal of plaintiff’s suit upon such directed verdict in this Court.

(6) Finally, defendant contends a new trial should be granted him because of the misconduct of the jury in the jury room.

Having held the trial judge should have directed a verdict for defendant, and having entered judgment in this Court dismissing plaintiff’s suit, as upon a directed verdict in this Court; the assignment in regard to the misconduct of the jury is never reached and becomes irrelevant in this Court.

Enter judgment in this Court dismissing plaintiff’s suit as upon a directed verdict ordered in this Court. Tax all costs against the original plaintiff and the surety on his bond according to law.

Shriver, J., concurs.