Fowlkes v. Lewis

65 So. 724, 10 Ala. App. 543, 1914 Ala. App. LEXIS 235

• Court: Alabama Court of Appeals
• Decided: June 11, 1914
• Status: Published

Opinions

WALKER, P. J.

The action may be treated here as one for malicious prosecution, as the count charging false imprisonment was eliminated by the general affirmative charge as to that count given at the request of the defendant, the appellant here. It was undisputed that the defendant caused the plaintiff to be prosecuted criminally for an alleged trespass after warning, and that, before the commencement of this suit, that prosecution had resulted in the acquittal of the plaintiff. The theory on which that prosecution was instituted was that the plaintiff, who as a subcontractor under one Hicks, had been engaged in painting a house which Hicks had contracted to build for the defendant, after Hicks had abandoned his contract and defendant had taken charge of the house to have it completed by others employed by himself, and when he (the plaintiff) no longer had any right or good excuse to be or remain on the defendant's premises, entered or remained thereon after having been warned or ordered not to do so.— Code, § 7827. The plaintiff testified to the effect that at the time he was arrested on the criminal charge made by the defendant he was engaged on' the painting job for which he had contracted with Hicks; that he did not know that Hicks had abandoned his contract or that he had been dispossessed or ejected; and that he (the plaintiff) had not been notified or warned not to enter or remain upon the defendant’s premises. The defendant, on the other hand, introduced evidence tending to prove that when the prosecution ivas instituted there was probable cause for him to believe that the plaintiff was guilty of the offense with which he was charged, and that the action he took was in pursuance of the advice of an attorney to whom all the facts were submitted.

We are not of opinion that the question asked the witness Martin, “What was said to him, if anything?” so plainly indicated that any evidence it might elicit was inadmissible for any purpose that the court was chargeable with error for overruling the objection to it, which was a general one, specifying no ground upon which it was made. — Williams v. Anniston Electric & Gas Co., 164 Ala. 84, 51 South. 385. A statement by the witness as to something said by the defendant to the plaintiff, throwing light on the former’s motive or purpose in instituting the prosecution, would not have been unresponsive to the question. At any rate, the court was entitled to be informed of the ground upon which the question was supposed to be objectionable.

As-to objections made to questions after they had been answered; it is enough to say that they came too late for the court to be chargeable with error for overruling them. — Birmingham Ry., Light & Power Co. v. Taylor, 152 Ala. 105, 44 South. 580.

It was not error for the court to sustain the plaintiff’s objection to the question of the defendant to his witness Smith, “State whether or not the proceedings were taken out under the advice of Mr. Brown, the attorney.” The matter called for was one for the jury to pass upon from the evidence adduced, and it was not for the witness to state the inference he drew from the facts to which he deposed. — United States Cast Iron Pipe & Foundry Co. v. Granger, 162 Ala. 637, 50 South. 159. The facts as to getting the advice of a lawyer and as to svhat was thereafter done having been testified to fully, the jury were as well able as the witness to draw the proper inference from them. Whether or not the person who instituted the proceedings could properly have been permitted to state what influenced him in doing so is a question which is not presented for decision.

We are unable to discover how there could have been any relevancy in any answer that could have been expected to the question asked the defendant, “Did you or not notify Hornbuckle to quit the job?” especially in view of the fact that the witness disclaimed any knowledge of the plaintiff’s having any connection with the person named in the question. Plainly the defendant was not entitled to prove a transaction he had with one who was stranger to the plaintiff.

We are not of opinion that material evidence was called for by the question asked the defendant, “Tell the jury whether or not you could get undisturbed possession of your premises at the time this arrest was made.” If the plaintiff had a right of action against the defendant for a malicious prosecution, it could not have' been affected or impaired by the fact that, possibly because of some occurrence for which the plaintiff was not responsible, the defendant was unable to get undisturbed possession of his premises; nor could that fact justify or palliate the conduct of the defendant in instituting a criminal prosecution against the plaintiff without having probable cause to believe that he was guilty of the offense with which he was charged. The fact sought to be proved was not a material one, and the court did not err in sustaining the objection to the' question.

Following a statement of the defendant’s witness O. B. Brown that he attended the trial-of the case in the criminal court and assisted in the prosecution, he was asked the following questions, objections to which were sustained:

“What was their defense to the prosecution?” “What evidence did they introduce on that subject to show there was no trespass after warning?” “State whether or not they sought to show by evidence that LeAvis Avas not guilty because he was on the FoAvlkes lot when he got- the notice not to enter on it.” “The evidence introduced by LeAvis Avas, in substance and effect, that he was on the premises when he got the notice not- to enter?”

The leading nature of the last of these questions was enough to justify the court in sustaining the objection to it. Each of the other questions sought to elicit proof as to what “they” did, without specifying Avhose conduct was the subject of the inquiries, or confining the inquiries to matters in which the plaintiff participated or for Avhich he Avas responsible. If it Avas desired to prove Avhat the plaintiff did or what was done by his authority, the questions should have been so framed as not to be capable of eliciting evidence as to conduct of strangers to him for Avhich he may not have been'at all responsible. One Martin was arrested at the same time the plaintiff was. The questions as asked might have elicited statements as to what he or his counsel did or as to mere suggestions of counsel evidence of which was not admissible against the plaintiff. — Tennessee Coal, Iron & Railroad Co. v. Linn, 123 Ala. 112, 26 South. 245, 82, Am. St. Rep. 108. If it was permissible for the defendant to prove what the plaintiff did in resisting the criminal charge upon which he was tried — and as to this we are not to be understood as intimating an opinion — the questions asked with a view of eliciting evidence in this regard should not have been so framed as to be calculated to-bring out evidence which was not admissible against the plaintiff. The court was not in error in sustaining the objections to questions having the faults which have been mentioned.

The assignments of error which are based upon the single exception which was reserved to several parts of the oral charge of the court to the jury are sought to be supported by what was said in the opinion rendered in the case of Jordan v. Alabama Great Southern R. Co., 81 Ala. 220, 228, 8 South. 191, in criticism of a charge which was construed as importing that a defendant would be civilly liable for a malicious prosecution if, in instituting it,, he was actuated by any motive other than the simple purpose of bringing the person prosecuted to justice, notwithstanding the facts that he had probable cause to believe that the plaintiff was guilty of the offense with which he was charged, and that the plaintiff was, in fact, guilty of the offense. No such meaning can be attributed to the parts of the oral charge to which the exception was reserved, especially if they are read, as they should be, in connection with what was stated by the court in' other parts of that charge. The giving of the parts of the charge which were excepted to was preceded by instructions plainly to the effect that it Avas incumbent upon the plaintiff, to entitle him to recover, to establish these four elements of the tort Avhich he alleged, namely: (1) That the alleged prosecution was instituted by the defendant; (2) that it was terminated before this suit was brought; (3) that it was instituted Avithout probable cause to believe that the plaintiff was guilty; and (4) that it was instituted maliciously. It is manifest that in the parts of the charge which were excepted to the court was dealing with malice as one of the elements of the alleged tort for which the defendant was sought to be charged with liability, and it said nothing indicating that the plaintiff would be entitled to recover if he proved nothing but that the defendant, in instituting the prosecution, was actuated by malice, as that element of the alleged wrong was defined. The following statement contained in the bill of exceptions distinctly negatives the conclusion that the counsel for the defendant, the appellant here, understood the parts of the charge which were excepted to as conveying or suggesting the meaning which in argument here is sought to be imputed to them:

“The defendant’s counsel stated at the time of the reservation of the exception that no exception was taken to the mere verbiage or phraseology of the said several parts of said oral charge excepted to, but to the principle announced therein to the effect that malice could be inferred from evidence tending to show that defendant, in the institution of legal proceedings, acted from any other motive or purpose than a bona fide effort to enforce the law.”

What the court said, in its definitions of malice to which an exception was reserved was in conformity with numerous rulings to the effect that: ■

“Any other motive than a bona fide purpose to bring the accused to punishment as a violator of the criminal law, or associated with such bona fide purpose, is malicious.” — Lunsford v. Dietrich, 93 Ala. 565, 9 South. 308, 30 Am. St. Rep. 79; Jordan v. Alabama Great Southern R. Co., 81 Ala. 220, 8 South. 191; Rutherford v. Dyer, 146 Ala. 665, 40 South. 974.

Written charges 6 and 7 given at the request of the plaintiff also were in conformity with those rulings, and the court did not err in giving either of those charges.

The institution of the alleged criminal prosecution by the defendant, and its termination before this suit was brought, were admitted, or at least were not controverted. This being true, it was not necessary that these factors be hypothesized in a charge undertaking to state what it was incumbent upon the plaintiff to prove to entitle him to a favorable verdict. The elements of the alleged tort as to which there was any controversy were hypothesized in written charge 5 given at the request of the plaintiff. If the defendant maliciously and without probable cause brought about the arrest and imprisonment of the plaintiff on the criminal charge mentioned in the second count of the complaint, he committed the tort which was charged in that count.

The charge in question is not subject to the criticism of it which is made in the argument of the counsel for the appellant, that it was in conflict with the charge given at the request of the defendant to the effect that, if the jury believed the evidence they could not find for the plaintiff under the first count of the complaint, which charged that the- defendant wrongfully caused the plaintiff to be arrested and imprisoned. The facts hypothesized in that charge, coupled with those as to which there was no controversy, were all that the plaintiff had to prove to sustain the averments of the second count. The charge was applicable to the count which remained before the jury, and the court did not err in giving it. — Lunsford v. Dietrich, supra.

For the advice of counsel to be a defense to the prosecutor, it must have been given on a full and fair statement of all the facts known to him, or which, by proper diligence, he could have ascertained. — Abingdon Mills v. Grogan, 167 Ala. 146, 52 South. 596.

Written charge 2, given at the request of the plaintiff, is criticized because of its omission of some such word as “due” or “proper” before the word “diligence,”' and it is suggested that the charge is to be construed as requiring the utmost diligence or extraordinary care. The court is not chargeable with the expression' of such a meaning. This charge was given in connection with another one which referred to the diligence which was required as “due diligence.” In this situation it is not to be supposed that the jury would infer that the charge in question imported a different or higher degree of diligence. All that can be said against that charge is-that it called for an explanatory charge if it was supposed that its omission of any qualifying term before the word “diligence” gave it a tendency to mislead. A possible misleading tendency of the charge, which, it may be supposed, would have been removed by an explanatory charge if it had been requested, did not make the giving of it a reversible error. — Doe ex dem. Anniston City Land Co. v. Edmondson, 127 Ala. 4-15, 30 South. 61.

The refusal of the court to give written charge 14 requested by the defendant was justifiable, because it was so expressed as to be capable of conveying the meaning that, if the plaintiff was warned not to leaveFowlkes’ premises, he had no legal cause or good excuse to be or remain there. The charge was lacking in-clearness.

Each of the written charges E, F, and Gf requested' by the defendant ay as faulty in its statement of a predicate for a verdict in favor of the defendant, in that it-omitted the submission to the jury of the question of the defendant being in possession of the premises upon Avhich the plaintiff was charged with having trespassed after Avarning. The evidence Avithout dispute sho-Aved that prior to the arrest of the plaintiff he had rightfully been on those premises as a subcontractor under Hicks, who bad tbe contract for building a bouse thereon. It was controverted tbat at tbe time of tbe arrest Hicks bad abandoned tbe contract and tbe defendant bad resumed possession of bis property for tbe purpose of having tbe building thereon completed. Tbe possession of tbe premises by tbe defendant should have been hypothesized, as, if tbe plaintiff entered on tbe premises without having been warned not to do so, bis failure or refusal to leave did not subject him to criminal prosecution unless be was ordered or requested to do so by “the person in possession, bis agent or representative.” —Code, § 7827. Tbe court was warranted in declining to assume tbe existence of tbe fact tbat tbe defendant was in possession when tbe prosecution was instituted. Tbat question was one proper to be submitted to tbe jury.

It being undisputed tbat tbe defendant instituted the alleged prosecution, and tbat it bad been terminated by tbe acquittal of the plaintiff before this suit was brought, tbe defendant could not have been entitled to tbe general affirmative charge in his favor unless tbe uncontroverted evidence showed that- when be instituted the prosecution be bad an honest belief; supported by reasonable grounds, of tbe plaintiff’s guilt of tbe offense with which be was charged. — Sleed v. Knowles, 79 Ala. 446; Long v. Rodgers, 19 Ala. 321; 26 Cyc. 29.

Whatever belief be bad of tbe plaintiff’s guilt of having committed a trespass after warning was founded, not on bis own knowledge of what tbe plaintiff bad done or omitted, to do, but upon information imparted to him by bis agent Smith. Whether one really believed a thing of which be did not have personal knowledge, and whether such belief was supported by reasonable grounds, depends upon tbe credibility of tbe information upon which tbe belief is claimed to have been based. When the information is the statement of another, the personality of the informant is a factor in the inquiry as to whether or not the information was or reasonably could have been relied on, as worthy of credit. Smith was before the jury as a witness. It was for them to pass upon his credibility and to determine whether or not the defendant believed his report of the plaintiff’s conduct, and whether or not such report constituted a reasonable ground for the defendant’s belief in the guilt of the plaintiff. As was said in the opinion in the case of Jordan v. Alabama Great Southern R. Co., supra: “No certain rule can be laid down for believing or not believing information received.” Plainly it is to be inferred from what Avas said in that opinion that the questions of a party’s belief in information imparted by third persons, and on the reasonableness or lack of reasonableness of the grounds for such a belief, are for the jury, and that on such a state of facts as that disclosed in the case at bar the court is not warranted in assuming either that the information was or that it was not credible, or that it was or was not actually believed by the party who acted on it. It follows that the court Avas not in error in refusing to give a charge- which involved such an assumption.

Written charge 2 requested by the defendant is not an accurate statement of an applicable proposition. The belief of the prosecutor is a state of mind, but the cause of that belief must be a state of facts or circumstances, not a mere mental creation of the prosecutor, but known or reported to him as actually existing. The inaccuracy of the statement justified the refusal of the charge.

Written charges 6 and 13 refused to the defendant were calculated to convey the impression that the acquittal of the plaintiff was not á circumstance which it was permissible for the jury to consider in passing on the question of the presence or absence of probable cause for the institution of the prosecution. It is true that a want of such probable cause cannot be inferred from the mere fact of acquittal (McLeod v. McLeod, 75 Ala. 483; 26 Cyc. 53) ; but it does not follow that the fact of acquittal should not be considered by the jury in connection with all the other circumstances disclosed by the evidence. In McLeod v. McLeod, supra, it was beld that the defendant’s unexplained abandonment of his prosecution of the plaintiff was not prima facie evidence of a want of probable cause; but it was said in the opinion:

“It is not to be inferred from what we have said that the act of abandoning a prosecution is not evidence to be weighed by the jury. That, and all other circumstances, should be considered in determining whether, at the institution of the prosecution, there was probable cause for believing the accused guilty of the offense charged.”

If on the inquiry mentioned an abandonment of the prosecution may be considered as one of a combination of circumstances, it is because, when so considered, and not looked to as an isolated fact, disassociated from other circumstances disclosed by the evidence, it may be regarded as having some tendency to prove a want of probable cause. We think it is to be inferred from the expression just quoted that the acquittal of the plaintiff is such a fact as may be looked to as one of a number of circumstances which, when considered together, may be regarded as having some tendency to prove a lack of probable cause to believe that the plaintiff was guilty of the offense with which he was charged. It follows that charges which were so expressed as to be liable to convey the impression that the acquittal of the plaintiff, whether considered by itself or in connection with other circumstances which there was evidence tending to prove, could not he looked to in passing on the question of the presence or absence of probable cause for the institution. of the prosecution, are to be regarded as having such a tendency to mislead as to justify the refusal of the court to give' them.

Charge 8 requested by the defendant was properly refused. The jury might have concluded from it that they avouM be justified in finding against the plaintiff if there had been anything in his conduct Avhich could have afforded to any one a reasonable basis for a belief in his guilt, though they found from the evidence that, at the time the prosecution Avas instituted, the defendant did not believe that he Avas guilty of the offense for Avhich he Avas prosecuted.

Befused charge 11 was abstract. There was no evidence of Common report in reference to the plaintiff's guilt. It is not intended to be intimated that this charge Avas not faulty in other respects.

As to the assignment of error based upon the exception reserved to the overruling of the defendant’s motion for a new trial, it is enough to say that, under the familiar rules applicable to the revieAV on appeal of the action of a trial court in that regard, it is not made to appear that reversible error Avas committed by that ruling.

Affirmed.