Deaton v. Leath

302 S.E.2d 335, 279 S.C. 82, 1983 S.C. LEXIS 273

Opinions

Ness, Justice:

This is a malicious prosecution action. Appellants contend the trial court erred in granting respondents’ Leaths’ motions for summary judgment. We disagree and affirm.

The Leaths caused appellants to be arrested and charged with trespassing and disorderly conduct. Appellants waived their right to a jury trial and were found guilty as charged by the Myrtle Beach City Recorder. They timely filed notices of intent to appeal in circuit court, but because of an equipment malfunction in the recorder’s court, a transcript of the proceedings could not be obtained. Appellants’ subsequent motion to set aside the convictions was granted,¹ and they were acquitted on retrial before a different judge.

Appellants then brought this action for malicious prosecution. Respondents’ motion for summary judgment was granted on the ground appellants’ initial convictions conclusively established probable cause. Appellants contend the convictions are not conclusive evidence of probable cause since the convictions were set aside and appellants were acquitted on retrial.

An essential element of malicious prosecution is lack of probable cause. Whitner v. Duke Power Co., S. C., 288 S. E. (2d) 389 (1982); Kinton v. Mobile Home Industries, Inc., 274 S. C. 179, 262 S. E. (2d) 727 (1980). While the issue presented by this case is of first impression in this state, the great majority of jurisdictions have ruled that a conviction, even though subsequently reversed or set aside, conclusively establishes reasonable cause absent a showing the conviction was procured through fraud, perjury, or other undue means. Faulkner v. Almon, 22 N. C. App. 643, 207 S. E. (2d) 388 (N. C. 1974); Boxer v. Slack, et al., 124 W. Va. 149, 19 S. E. (2d) 606 (W. Va. 1942); Ricketts v. J. G. McCrory Co., 138 Va. 548, 121 S. E. 916 (Va. 1924); Georgia Loan & Trust Company v. Johnston, 116 Ga. 628, 43 S. E. 27 (Ga. 1902). See Annot. 86 A.L.R. (2d) 1090; Prosser, Torts, § 119, p. 846 (4th Ed. 1971).

We find the majority rule to be a well-reasoned one. In determining the existence of probable cause in a malicious prosecution action, the focus is on whether the defendant had reasonable cause to believe the plaintiff guilty, and not on the plaintiff’s actual guilt or innocence. Kinton, supra. If a court proceeds to conviction, it necessarily had evidence before it which could convince a reasonable man of the accused’s guilt beyond a reasonable doubt, and thus a presumption of reasonable cause arises. Absent fraud, a subsequent reversal is no evidence of lack of reasonable cause, particularly where, as here, the sole ground for setting aside the convictions was the unavailability of a transcript of the proceedings.

Appellants do not allege the conviction was obtained through fraud, perjury, or other undue means. Absent such an allegation, their convictions conclusively establish probable cause. Therefore, the trial judge properly granted respondents’ summary judgment motion.

Affirmed.

Littlejohn, Gregory and Harwell, JJ., concur. Lewis, C. J., dissents.

Footnotes

1

We question the propriety of the recorder’s setting aside the convictions on the ground asserted in light of South Carolina Code Ann. §§ 14-25-160 (1976), which was then in effect. However, this issue was never raised by respondent, and is not before this Court.