Johnson v. Painter , 279 S.C. 390 ( 1983 )

Gregory, Justice.

Floyd G. Painter, Sr., appeals from a jury verdict awarding respondent Roger Johnson the sum of $1,550.00 actual damages and $8,450.00 punitive damages on his cause of action for abuse of process. The punitive damages award was reduced to $3,450.00 on a motion for a new trial nisi. We reverse.

Appellant advances two grounds for reversal: (1) insufficiency of the evidence; and (2) prejudicial and improper argument to the jury by respondent’s counsel. The alleged improper argument was not objected to during the trial and any objection to the argument is deemed waived. The sole remaining issue involves the sufficiency of the evidence to sustain the finding of the jury that there was an abuse of process.

We held in Huggins v. Winn-Dixie Greenville, Inc., 249 S. C. 206, 153 S. E. (2d) 693 (1967), that the tort of abuse of process, as distinguished from that of malicious prosecution, involves the malicious misuse or perversion of the process, after its issuance, for an end not lawfully warranted by it. The essential elements of abuse of process are: (1) an ulterior purpose; and (2) a wilful act in the use of the process not proper in the regular conduct of the proceeding.

This action arose from a fight between the parties which resulted in physical injuries to appellant. Appellant thereafter procured the issuance of a criminal warrant against respondent for simple assault and battery, which was'later upgraded to assault and battery of a high and aggravated nature. The trial of the criminal charges resulted in respondent’s acquittal. He then brought this action.

Respondent’s cause of action rested upon testimony to the effect that appellant, after institution of criminal charges, sought monetary gain, offering to drop the charges upon payment of $2,500.00.

The uncontradicted testimony at trial was that respondent’s attorney, who was counsel for Mr. Johnson in both the criminal and this proceeding, telephoned appellant while the criminal charge was pending. Appellant testified he agreed to drop the charges, if the solicitor also agreed, upon payment of $2,500.00 restitution for lost time and medical and hospital expenses.

Additionally, appellant candidly admitted that if respondent had been found guilty at the criminal trial, appellant would have requested the court for restitution from respondent.

The court does not always have to accept uncontradicted evidence as establishing the truth; however, it should be accepted unless there is reason for disbelief. Elwood Construction Co. v. Richards, 265 S. C. 228, 217 S. E. (2d) 769 (1975).

A search of the record shows the only reasonable inference that can be drawn from the evidence is that respondent’s counsel telephoned appellant and got him to agree to drop the criminal charge against respondent if appellant were reimbursed for his lost time, medical and hospital expenses, and if the solicitor agreed. Appellant and respondent were across-the-street neighbors who had had no prior difficulties. We have always looked with favor upon restitution and reconciliation. We see nothing wrong with the attorney calling or appellant telling him the amount of his out-of-pocket expenses.

We find the verdict for abuse of process is without evidentiary support; thus, the trial judge erred in not granting appellant’s motion for a directed verdict. Accordingly, we reverse.

Reversed.

Littlejohn and Harwell, JJ., and Joseph R. Moss, Acting Associate Justice, concur. Lewis, C. J., dissents.