Parisian Co. v. Williams , 203 Ala. 378 ( 1919 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] This is an action for malicious prosecution tried under the general issue; and the burden of proof is upon the plaintiff to establish by a preponderance of the evidence: "First, that the defendant has prosecuted complainant, or caused him to be prosecuted, as alleged in his complaint, and that the prosecution is ended; second, that the prosecution on the part of the defendant was both malicious and without probable cause; third, that in consequence of the prosecution complainant was damaged." Hanchey v. Brunson, 175 Ala. 236, 56 So. 971, Ann. Cas. 1914C, 804.

The following excerpt from Gulsby v. L. N. R. R. Co.,167 Ala. 122, 52 So. 392, is here pertinent:

"Malice has been thus well defined by this court: 'Whatever is done willfully and purposely, whether the motive be to injure the accused, to gain some advantage to the prosecutor, or through mere wantonness or carelessness, if at the same time wrong and unlawful within the knowledge of the actor, is in legal contemplation maliciously done.' Lunsford v. Dietrich, supra [93 Ala. 565, 9 So. 308, 30 Am. St. Rep. 79]; Jordan v. A. G. S. R. R. Co., 81 Ala. 220, 8 So. 191. Personal ill will, or desire for revenge, is not essential to the existence of malice as the law views it. Lunsford v. Dietrich, supra.

"Probable cause was also defined in Lunsford v. Dietrich, supra, as follows: 'A reasonable ground for suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the person accused is guilty of the offense charged.' Mere suspicion and belief, even though honestly, bona fide entertained, of the guilt does not, as readily appears, alone, rise to the dignity of affording a basis for probable cause. It is essential that, at the time the oath of affirmation is taken or made, the actor then knew of facts or circumstances such as would have justified a reasonable and cautious man in believing that the accused was guilty. Lunsford v. Dietrich, supra."

Malice may be inferred from want of probable cause, for setting a prosecution on foot; and the question in such cases is not whether the accused was in fact guilty, but whether the prosecutor, acting in good faith and on the reasonable appearance of things, entertained the reasonable belief of his guilt. McLeod v. McLeod, 75 Ala. 483. "Malice may also be inferred * * * from the circumstances surrounding and attending upon the prosecution, the conduct and declarations of the prosecutor, his activity in and about the case, his efforts therein to secure some personal end." Lunsford v. Dietrich,93 Ala. 565, 9 So. 308, 30 Am. St. Rep. 79.

The prosecution of plaintiff was had upon a complaint containing five counts, charging in various ways — as disclosed in the statement of the case — a violation of an ordinance of the city of Birmingham, which counsel for appellant state in brief is a literal copy of what is known as the "Printers Ink Statute" (which statement we feel justified in accepting without further examination or question), approved September 1, 1915 (Acts 1915, p. 339). That portion of the act here pertinent provides for the punishment, by fine or imprisonment, or both, of "any person, firm, corporation or association, or agent or employé thereof with intent to sell or in any way dispose of merchandise * * * offers * * * for sale * * * knowingly makes, publishes, * * * or causes, directly or indirectly, to be made, published, * * * in a newspaper, * * * or in any other way, an advertisement, announcement or statement of any sort regarding merchandise * * * so offered to the public which contains any assertion, representation or statement that is untrue, deceptive or misleading." Section 1.

A statute of like character was attacked upon constitutional as well as other grounds in the case of Jasnowski v. Connolly,192 Mich. 139, 158 N.W. 229, and held to be free from such objection, and its validity is not here assailed. It is akin to those statutory provisions affecting the subject of fraud and false pretenses.

It is earnestly insisted by counsel for appellant that the court erred in refusing the affirmative charge for the defendants, upon the theory that the evidence shows without dispute there was probable cause for the prosecution; and that in such case there is presented a question of law for the court. Gulsby v. L. N. R. R. Co., supra.

This insistence is largely based on some of the testimony of the plaintiff himself, who stated that all the articles offered were not of the full value as advertised, but that they were of varying values, "up to" the price indicated in the advertisement. The evidence for the plaintiff shows that he handed the telegram received from his wife, who was then purchasing goods for his company in New York City, to his advertising agent, with instructions to feature the advertisement in accordance with the telegram. The telegram was set out verbatim in the advertisement, and which, it may be inferred, formed the basis of the advertisement. It states "the telegram tells you the story." The telegram was to the effect that the values were to a certain price. There was ample evidence tending to show that among the different articles featured quite a number were of the full value as advertised, while others were not of such full value, but were well worth the price at which they were offered for sale.

The entire advertisement is to be considered as a whole, and we are of the opinion that, under the circumstances here disclosed, it was for the jury to determine whether or not the plaintiff knowingly published what was untrue, deceptive, or misleading.

However, there is still another answer against the insistence for the affirmative charge. In cases of this character, the question to determine is whether the prosecutor acting in good faith and on the reasonable appearance of things entertained the reasonable belief of the guilt of the accused, and not whether the accused was in fact guilty.

The theory of the plaintiff is that, while the defendant Block did not swear out the warrant against him, yet he in fact caused his prosecution, instituted the original inquiry before the Ad Club, and was in fact the instigator of the entire proceeding. So the question remains, Were the facts and circumstances which were then known to the defendant sufficiently strong in themselves to warrant a cautious man in the belief that the plaintiff was guilty of the offense charged? The secretary of the Ad Club states that in the conference, which was held in the private office of the defendant Block, the two advertisements were exhibited and examined.

So far as all charges, with the exception of the coat and waist purchased, as agreed in the conference, are concerned, there can be no serious controversy that the question of probable cause was for the jury's determination. As to the coat purchased by the secretary's wife, there was ample evidence for the jury's determination that it was of the full value advertised. In a statement by the secretary of the Ad Club is found this admission: "When the coat was bought it was found to be of the full value placed upon it in the advertisement." As to the waist purchased there is also evidence tending to show that it was of the value advertised, as is disclosed by the evidence set out in the statement of the case. Although the preponderance of the evidence may tend to show that it was not of the advertised value, yet it was of the full value at which it was offered for sale. The proof shows that various opinions were entertained as to the value of merchandise of this character; and therefore the question of probable cause upon this phase of the case was one for the determination of the jury.

The plaintiff was permitted, over the defendant's objection, to show that the Ad Club, after having instituted the prosecution, abandoned the same, and ordered the attorney to drop the case; and counsel insists that this constitutes reversible error — citing Hanchey v. Brunson, supra; Killebrew v. Carlisle, 97 Ala. 536, 12 So. 167.

Had the defendant Block been the actual prosecutor, there can be no question that the act of abandoning the same should be weighed by the jury in connection with all the other circumstances in determining whether or not there was probable cause for believing the accused guilty of the offense charged. McLeod v. McLeod, supra.

The evidence for the plaintiff tended to show that, while Block was not the prosecutor upon the face of the proceeding, yet he was in fact the originator of the entire matter, and that he was in truth and in fact the plaintiff's prosecutor, shielded and protected by the Ad Club; that he furnished all the means by which any evidence was secured upon which prosecution could be based. And we are of the opinion that, under the evidence as here disclosed the abandonment of the prosecution by the Ad Club was properly to be considered by the jury upon the question of probable cause. We are of the opinion, however, that this evidence was admissible upon the question of actual malice, as having some tendency to show prior animus on the part of Block. Plaintiff was a new competitor in the defendant's line of business, and we think the evidence for the plaintiff tended to show some activity on the part of defendant to remove plaintiff from that particular field of business, and that this prosecution was but other evidence of some feeling on the part of a restless competitor.

While there was no direct evidence to this effect, yet we entertain the view there was sufficient proof, however slight, from which the jury could infer that the continuance of the prosecution by the attorney after having been requested to drop the case by the Ad Club was at the defendant Block's instigation, suggestion, or request. Under these circumstances, therefore, if the jury reached such conclusion, the persistence of the defendant in the prosecution, after the abandonment thereof by the Ad Club, was proper to be weighed by them upon the question of malice.

The witness Kaufman was permitted to testify as to the value of the waists exhibited to him in the recorder's court. There was evidence tending to show that the particular waist purchased was used on the trial, and therefore the jury may infer that this particular waist was also exhibited to the witnesses in connection with other waists there shown, which came from the plaintiff's store. We think this evidence was competent upon the question of probable cause.

Plaintiff testified that he employed counsel to defend him, and was asked how much was paid such counsel. The objection to this question by defendant upon the ground that it was incompetent, irrelevant, and immaterial was overruled; and this action of the court is assigned as error — citing Walker v. Gunnels, 188 Ala. 206, 66 So. 45; Boshell v. Cunningham,76 So. 937;¹ Tutwiler Coal Coke Co. v. Tuvin, 158 Ala. 657,48 So. 79.

It was said in B. R., L. P. Co. v. Humphries, 172 Ala. 495,55 So. 307:

"While it is true that the defendant is not liable for any more than the reasonable value of the services, * * * yet neither is it liable for any more than has been actually paid or is due. So it is necessary to prove both, and both cannot be proved at once. The natural order is to prove what the charge is, and then prove whether or not it is reasonable."

The objection, it is noted, to the question was very general, and was not based upon the specific ground that such sum was not shown to be reasonable. It is clear therefore that the question was not objectionable upon these specific grounds, and that the court cannot be put in error for overruling the same.

Counsel in this connection assign as error the refusal of charges instructing the jury that they were not authorized to assess damages for attorney's fee, which they found from the evidence plaintiff paid or incurred. As previously shown, the evidence as to what the plaintiff had paid was before the jury; no valid objection having been interposed thereto. Under these circumstances, therefore, it could not be wholly eliminated by the requesting of charges as was here attempted. Such was the holding in B. R., L. P. Co. v. Girod, 164 Ala. 10, 51 So. 242,137 Am. St. Rep. 17.

There was no reversible error in the refusal of the charge numbered (F), which constitutes the seventh assignment of error. It is argumentative, and in addition to that what we have previously said in regard to the admission of proof of withdrawing the prosecution by the Ad Club sufficiently discloses our view that it was otherwise faulty.

Numerous charges were asked by the defendants, and refused, instructing the jury, in effect, that if any of the articles of merchandise were found to be of less value than stated, the verdict must be for the defendants. Most of these charges are objectionable upon the theory that they omit any reference to the facts and circumstances known to defendant at the time of the prosecution, and of his reasonable belief of the guilt of the plaintiff, as drawn therefrom. In addition to this, what we have said in discussing the refusal of the affirmative charge, we think, suffices to show that there was no error in this action of the court.

The charge which constitutes assignment of error No. 16 was properly refused upon the theory that the same is misleading, as the jury might infer therefrom that the fact that the charge against the plaintiff was nol. pros'd, should not be considered by them in connection with all the other evidence upon the question of probable cause.

It is submitted that the judgment was highly excessive, and for that reason a new trial should have been awarded. The evidence as set out in the statement of the case will suffice to show that the jury were authorized to infer, not only malice, which arises as a matter of law from a want of probable cause, but also malice which springs from a motive to injure the accused, or to gain some advantage to the prosecutor, to secure some personal end, and that exemplary damages were recoverable in this action. Coleman v. Pepper, 159 Ala. 310,49 So. 310.

In addition to this, the plaintiff was the sole manager, and largely interested in the business, of S. A. Williams Co., which had been in operation only two months, and which, from the evidence, seems to have been meeting with some degree of success. There is also evidence tending to show that publicity was given to the prosecution of plaintiff in the newspapers of the city, and that it became a matter of considerable discussion. A business of this character is largely dependent upon the good will and trust of the public. As relating to his line of business, the charge was a rather serious one, calculated to inflict considerable injury and place him at much disadvantage. Under such circumstances the damage actually sustained is difficult of precise measurement.

The rule in regard to the action of the court on the question of disturbing a judgment as being excessive in amount, is well understood, and need not be here repeated. Cent. of Ga. Ry. Co. v. White, 175 Ala. 60, 56 So. 574.

After a careful review of the record in this case, we have reached the conclusion there was no error in this ruling of the court, and that the judgment is not such as to call for any action upon our part.

It is further argued that a new trial should be granted because the verdict of the jury was contrary to the law as charged by the court; and this insistence is based upon the fact that the court gave for the defendant a charge, which, it may appear, was probably more favorable to the defendant than was authorized by the facts of the case. In support of this contention counsel cite us to the case of Fleming v. L. N. R. R. Co., 148 Ala. 527, 41 So. 683, where the court granted a new trial for the reason the jury brought in a verdict for $265 after the court had instructed the jury that the plaintiff could recover only nominal damages. Such a situation is not here presented, and we do not consider that case as an authority supporting the insistence here made.

The oral charge of the court, as well as charges given for the respective parties, are set out in the record, and the court very properly submitted the question of malice, and the existence vel non of probable cause for the consideration of the jury.

The mere fact, therefore, that the court gave to the jury for the defendants at their request one charge which was doubtless more favorable than was justified clearly does not present reversible error. Indeed, the holding of this court in the recent case of Tally v. Whitlock, 199 Ala. 28, 73 So. 976, is sufficient answer to this insistence.

We have here considered the assignments of error argued in brief by counsel for appellant, and have reached the conclusion that no reversible error is shown.

It results therefore that the judgment appealed from will be affirmed.

Affirmed.

ANDERSON, C. J., and SAYRE and THOMAS, JJ., concur.

¹ 200 Ala. 579.