Huffstutler v. Edge

CARR, Judge.

This is an action for malicious prosecution. In the court below the trial 'judge, without the aid of a jury, rendered judgment for the plaintiff in the sum of $750.00.

The question of prime concern on this appeal revolves around the inquiry of whether or not the evidence is of sufficient potency to sustain this judgment.

In approaching our task we must, of course, adhere to the familiar rules relating to our review of cases tried below without a jury. Halle v. Brooks, 209 Ala. 486, 96 So. 341; Hackett v. Cash, 196 Ala. 403, 72 So. 52; Norris v. Kelly, 249 Ala. 281, 31 So.2d 129.

In the case at bar, the plaintiff below, as an independent contractor, entered into an agreement with General Ore Company to mine some bauxite ore in Barbour County, Alabama. The defendant below was the president and owner of the ore company. The appellee owned part of the machinery equipment which he used in the mining operations.

Apparently the undertaking did not prove to be profitable to the appellee, and after several months of operation he became heavily indebted to various supply merchants in that vicinity.

According to the testimony of the appellant he agreed with the appellee to pay these accounts in the course of time as the funds of the ore company would permit. In consideration of this promise the appellee agreed to transfer title to his part of equipment to the General Ore Company. The accounts were paid by appellant.

The appellee denied in his testimony that he agreed to sell or transfer title in his property to the ore company.

This evidential conflict comprises the prime factual dispute disclosed by the record.

The operations continued to be unprofitable to the appellee and finally he abandoned the enterprise and moved the machinery, which without dispute he originally owned, to Anniston, Alabama. The appellant testified that this was done without his knowledge or consent.

Upon learning of the location of the equipment, the appellant went to Anniston and swore out a warrant against the appellee charging him with grand larceny of the property. He later appeared and testified before the grand jury in Calhoun County. No indictment was returned. Two months later, however, the grand jury in Calhoun County did return an indictment charging the appellee with grand larceny and embezzlement of the equipment in question. This case was subsequently nol prossed.

After the proceedings in Calhoun County had terminated as indicated, the appellant contacted the solicitor in Barbour County, Alabama. The solicitor testified that the appellant talked to him and his deputy several times about the matter and the possibility of a successful grand jury investigation. The witness stated also that the appellant was very solicitous about the investigation of the case and appeared very much interested in the prosecution.

In response to subpoenas the appellant and other witnesses, appeared and testified before the grand jury in Barbour County. The appellant was the only one among the number who gave evidence which related in any manner to the alleged claim of ownership of the equipment which was the subject of the controversy.

The grand jury of Barbour County returned an indictment against the appellee charging him with grand larceny of the property in question. The indictee was later acquitted of the charge.

This is only a scant delineation of the tendencies of the evidence, but it is sufficient as a. basis for our review. There was other evidence which tended to support the judgment of the trial judge.

This suit is based on the proceedings in Barbour County.

“Malicious prosecution is the putting of the processes of law in operation maliciously and without probable cause, leading on in due course to the arrest of the victim.” Morgan v. Baird, 219 Ala. 225, 121 So. 526, 527.

“An action for malicious prosecution may be maintained against a person who procures an indictment and carries on a prosecution against another, other elements of the cause of action being present, whether or not he appears of record to be the prosecutor.” 34 Am.Jur., p. 715, Sec. 22.

In the case of King v. Second Nat. Bank & Trust Co. of Saginaw, Mich. et al., 234 Ala. 106, 173 So. 498, 500, Justice Bouldin writing for the Supreme -Court said:

“It is the law that one who, shielding himself behind a grand jury investigation, corruptly or oppressively brings about the indictment and prosecution of another maliciously and without probable cause, is no less guilty than if he had sworn out a warrant in the first instance. This may be accomplished by fraud, perjury, subornation, or by the willful suppression of known material facts, the intentional thwarting of a fair investigation.”

It clearly appears to us that the issues of malice and want of probable cause were issues of fact which were addressed to the court in the instant case. In our view this judgment should not be disturbed.

The case at bar in many factual aspects is analogous to the case of Morgan v. Baird, supra. By logical deduction we find much support in this opinion for our conclusions here.

One assignment of error poses the position that the amount of the judgment was excessive. This is not sufficiently stressed in brief of counsel. Republic Iron & Steel Co. v. Quinton, 194 Ala. 126, 69 So. 604; Western Union Tel. Co. v. Benson, 159 Ala. 254, 48 So. 712; Powell v. Bingham, 29 Ala.App. 248, 196 So. 154.

The remaining assignments of error are based on the trial court’s rulings on the evidence. We do not find any prejudicial error in this connection. Some of the questions, the -objections to which were overruled by the court, related to inquiries that were in no manner in dispute. Stallings v. State, 249 Ala. 1, 32 So.2d 233; Wilson v. State, 31 Ala.App. 21, 11 So.2d 563.

It is insisted in brief of counsel that there were certain parts of a documentary exhibit which were not properly contained in the instrument. These were merely cumulative of other evidence that was not in dispute. This aside, the objections were interposed to the exhibit as a whole. Morgan v. Baird, supra.

It is urged that a witness was permitted, over timely objections of appellant, to state his conclusions. If we should agree with this position, a reversal of the judgment would not be authorized. The witness, without objections, stated facts sufficiently detailed to base his conclusions. Haas Bros. v. Craft, 9 Ala.App. 404, 64 So. 163.

We do not find any prejudicial error in this record. The judgment of the lower court is therefore ordered affirmed.

Affirmed.