Berry v. Priddy , 126 Miss. 125 ( 1921 )

Smith, C. J.,

delivered the opinion of the court.

This is an appeal from a judgment awarding the appellee damages in an action for malicious prosecution.. The basis of the action is a charge of perjury .lodged by the appellant against the appellee with a justice of the peace, who, after hearing the evidence, discharged the appellee.

The affidavit charging the appellee with perjury set forth that in a certain lawsuit in the circuit court of Al-corn county, wherein “it became and was necessary to inquire into the size of a certain bit used in reaming out a certain well, and whether he (the appellee) reamed out the well the same diameter all the way down,” the appellee, disregarding his oath, “did . . . swear falsely-that he and the sáid H. B. Priddy used a four-inch bit in reaming out the said well, and that he reamed out the well the same diameter all the way down, which said testimony the said H. B. Priddy knew to be false Avhen he deposed the same,” etc.

It appears from the evidence that the appellee contracted with the appellant to ream a certain well four inches for .its entire depth, using a four-inch bit for that purpose, and that the appellee did ream the well, but was refused payment therefor by the appellant on the ground that its diameter was less than four inches. The appellee then sued the appellant on the contract in the court of a justice of the peace Avherein judgment was rendered against him, but on appeal to the circuit court judgment was there rendered in his favor for the amount claimed by him.

The appellee admitted that he testified on the trial in the circuit court' and claims that the truth is that he reamed the well four inches for its entire depth, using a four-inch bit for that purpose. The appellant testified that the well, which was one hundred twenty-nine feet deep, was reamed by the appellee four inches for a depth of only eighty-eight feet; that a bucket three and one-half inches in diameter would descend only that distance; and that a pipe two and one-half inches in diameter would descend only a few feet further. In this he was corroborated by another witness. The appellant also testified that the appellee testified on the trial before the justice of the peace “that he didn’t ream it (the ivell) out four inches all the way down, contending that he lacked an eighth of an inch.” The appellee denied that he so testified before the justice of the peace, but stated, on the contrary, that his testimony in that court was the same as in the circuit court.

There was testimony to the effect that the ■ appellant had been advised by an attorney that the prosecution of the appellant for perjury could not be maintained, and there was also evidence tending to show malice on the part of the appellant in charging the appellee with the commission of perjury.

The court below directed the jury.to return a verdict for the appellee, leaving to it the determination only of the amount of damages, in response to which instruction the jury returned a verdict in favor of the appellee for three thousand dollars, and there was a judgment accordingly.

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. 19 Am. & Eng. Ency. L. 657; Threefoot v. Nuckols, 68 Miss 116, 8 So. 335. If it is true, then, that the well was not reamed four inches for its entire length, and that the appellee so testified on the trial before the justice of the peace, which facts were on the evidence for the determination of the jury; the appellant had probable cause to believe that the appellee committed perjury when he testified on the trial in the circuit court that the well had been reamed four inches for its entire depth. The request for a directed verdict therefore, without reference to the other questions argued by counsel, should have been refused.

Reversed and remanded