Opinion
No. 29394.
May 12, 1931.
1. MALICIOUS PROSECUTION.
Institution of criminal proceeding under Bad Check Laws, if merely for purpose of collecting debt, would render prosecution malicious (Code 1930, sections 924, 925).
2. MALICIOUS PROSECUTION. Defendant, in action for malicious prosecution, could not assert lack of knowledge of charge on which plaintiff was imprisoned, where facts showed ratification of agent's acts.
Defendant on his own admission knew that plaintiff was in jail, and knew, or had sufficient facts before him to charge him with knowledge, that imprisonment was on particular charge for which plaintiff was being held which was made at instance of defendant's agent, and that defendant, notwithstanding such knowledge, took no step in disavowal of agent's acts.
APPEAL from circuit court of Lee county; HON.C.P. LONG, Judge.
S.H. Long, of Tupelo, for appellant.
Malice is a condition of mind which shows a heart regardless of social duty and fatally bent on mischief, the existence of which is inferred from acts committed or words spoken.
18 R.C.L., page 2, par. 2.
Malice in common acceptance, means ill will against a person, but in its legal sense it means a wrongful act, done intentionally and without just cause or excuse.
18 R.C.L., page 3; 5 Words and Phrases, page 4298.
The malice necessary to sustain an action for malicious prosecution is not express malice — a specific desire to vex or injure another from malevolence or motives of ill will — but the willful doing of an unlawful act to the prejudice or injury of another.
Johnson v. Elberts, 11 Fed. 129-131; Lemoy v. Williams, 32 Ark. 166; Ramsey v. Arrott, 64 Tex. 320[ 64 Tex. 320]; Carothers v. McIlhenndy, 63 Tex. 138; Porter v. Martin, 32 S.W. 731; Hurpham v. Whitney, 77 Illinois. 32; Hamilton v. Smith, 39 Michigan 222; Noble v. White, 51 S.W. 194.
The authorities are unanimous in holding that it is essential to a recovery in the action of malicious prosecution that the action or prosecution complained of must have been maliciously instituted.
Malice is distinguishable from mere negligence in that it arises from some purpose, while negligence arises from absence of purpose. The characteristic of negligence is inadvertence, or an absence of an intent to injure, but, to constitute malice, there must have been a motive or purpose, and it must have been an improper one. It may be stated as a general rule that a wrong act done intentionally without legal justification constitutes such malice in instituting a civil action as will support an action for malicious prosecution, and that malice in a criminal prosecution is merely the institution or maintaining of such prosecution without being induced so to do by the desire to bring the accused to justice. It has frequently been held that the institution of a criminal prosecution for the purpose of compelling the person prosecuted to pay a debt or to turn over property in his possession constitutes a malicious act such as will support an action for malicious prosecution.
18 R.C.L., page 28, par. 16.
Downing v. Stone, 21 Am. Cas. 753, 126 A.S.R. 841.
Defendant in open court admitted the agency of witness Seal, and admitted his authority to have appellant arrested. There was a subsequent ratification by appellant in not directing the release of Odum when he knew Odum was in jail, and by appearing at the trial and insisting on reopening the case and trying same.
Mitchell Clayton, of Tupelo, for appellee.
Probable cause is not to be confounded with actual guilt. Probable cause is only such a state of facts and circumstances as would lead a careful and conscientious man to believe that the plaintiff was guilty. This can only require that the defendant upon prudent and carefull inquiry, shall find the declared or reputed existence of such facts as indicate guilt with reasonable certainty.
Planters Ins. Co. v. Williams, 60 Miss. 922.
It must be conceded, upon principles of sound public policy, and from the standpoint of exact and even-handed justice, that a citizen or corporation, when acting in good faith and without malice, should be commended rather than penalized for aiding the officers of the law in ferreting out and bringing to the bar of the courts offenders against the criminal laws of the state.
Railroad v. Porterfield, 103 Miss. 596.
Malice comprehends ill will, a wickedness of disposition, cruelty, recklessness, a mind regardless of social duty.
Brett v. State, 91 Miss. 674.
An action for malicious prosecution cannot be maintained unless probable cause and malice on the part of the defendant in the prosecution complained of concur. Probable cause is the existence of facts known to the defendant at the time he instituted the prosecution complained of sufficient to induce in the mind of a reasonable man a belief in the guilt of the accused.
Berry v. Priddy, 128 Miss. 133.
Want of probable cause cannot be inferred even from proof of actual malice.
Buckingham v. Jones, 122 So. 532.
Appellant sued appellee in the circuit court for a malicious prosecution, and the facts are briefly as follows:
Appellee was the operator of a grocery store, and appellant was a customer of said store. From December 1 to December 12, 1928, appellant had purchased at said store, on credit, supplies amounting to nineteen dollars and fifty cents. Appellant was unable to pay said sum because of an injury sustained by him about this time, as he says, and, on complaint being made by appellee of this default, it was arranged that appellant give a postdated check, with the agreement to cover the same by the deposit of funds at the earliest possible day. Therefore a check, dated January 17, 1929, for said sum of nineteen dollars and fifty cents was given by appellant, but, having been thrown out of full work on account of partial suspension of operations at the mill where appellant was employed, appellant was able to pay only one dollar and fifty cents on said check, which was paid direct to appellee and credited on the check, as shown by an indorsement on the back of said check.
The above is the statement of appellant. That of appellee is that the check dated January 17, 1929, was not for the purchases made in the previous month amounting as aforesaid to nineteen dollars and fifty cents, but was for goods in that exact amount purchased on said January 17, 1929, for cash, and that the check was given as cash for goods actually delivered on the faith thereof on the very day the check bears date.
The check was not paid on presentation at the bank, and on February 8, 1929, appellee, through his agent, procured an affidavit to be made against appellant, under what is commonly known as the Bad Check Law, sections 924 and 925, Code 1930. Appellant was immediately arrested and put in jail, where he was confined for nine days, after which the proceedings were dismissed at the direction of the county prosecuting attorney; and thereafter appellant brought this suit.
The issue is thus a simple one: If the check was given, as appellant states, for previous purchases, then the prosecution and imprisonment of appellant was palpably without cause, and since — if such was the case — the inference under the evidence is irresistible that the motive in the prosecution was none other than to use the criminal processes of the law to collect a debt, the prosecution was malicious within the meaning of the law. If, on the other hand, the check was given for goods purchased on the day the check bears date, and the goods were then and there delivered to appellant in exchange for said check and on the faith that the check was presently good, then the prosecution was upon cause, and the question of malice, actual or otherwise, disappears from the case.
Although such was the simple issue, the trial was allowed to range over much adjacent and improper territory; instructions contradictory, confusing, and inapplicable were given, and the plain issue, above stated, was finally obscured in such a way that the case lost its primary bearing and became befogged in errors and collateral issues.
Without wading through the nine assignments of error in detail, we reverse and remand, with directions that the case be tried on the material issues stated, in so far as the question of liability is concerned. We shall add, however, that the present verdict cannot be sustained, as earnestly urged by appellee, on the claim of appellee that he did not authorize the prosecution. On his own admission he knew that appellant was in jail, and he knew, or had sufficient facts before him to charge him with knowledge, that the imprisonment was on this particular charge, and at the instance of his agent; yet he took no step in disavowal, and must therefore be held to a ratification.
Reversed and remanded.