China v. Seaboard Air Line Ry.

I cannot concur in the opinion of the majority of the Court. In Ford v. Kelseyand Deas, 38 S.C.L. (4 Rich. Law 375), we find:

"It is said, however, the existence of a probable cause is a question for the jury. That is true where there is any dispute about facts. But where, as here, all the facts proved by the plaintiff are assumed to be true, and still they do not make out what in law constitutes proof of absence of probable cause, it follows there is nothing to go to the jury."

In this case the cardinal facts are practically undisputed, and I cannot see that the plaintiff has proven an absence of probable cause. The plaintiff's duty was to receive the defendant's money and forward the whole sum collected. The plaintiff's salary was not to be deducted. That was sent to the plaintiff by the proper officer of the defendant. All the money collected by the plaintiff belonged to the defendant. The plaintiff had used a part of the money in previous months. The amount used increased with each unlawful use. The defendant's agent came back within the month, and found that more money had been appropriated by the plaintiff than had ever been appropriated in a whole month before. The defendant found that the daily entry, required by the rules and custom of the company, had not been made. This failure to enter the daily receipts on the book had not been mere inadvertence, but intentional. It is true the data was in the office, but it required checking up to show that the accounts were short. The plaintiff had taken more of defendant's money than the defendant owed to the plaintiff.

It is conceded that there was a breach of trust. What was the intent? The plaintiff said, "I intended to pay it back?" How? His salary was not enough, and he had tried to raise the money from other sources before he took the defendant's money. Disregard the statement written by the defendant's auditor and signed by the plaintiff, and take only the letter written by the plaintiff, untrammeled by other influence, and he says:

"This is the first time that I have done such, and the company is due me enough to cover this, and as soon as I get it will replace this shortage. I know this looks bad" (italics mine), "but, as I have stated already that my intentions were good, that is positively the truth."

This was not the first time, and the salary would not cover it. It certainly looked bad. In that it looked bad, the plaintiff failed to prove, in my judgment, the want of probable cause. If a cashier of a bank takes the money of the bank and does not make the proper entries (or if he does), is he entitled to a judgment for malicious prosecution against the bank because the jury believed him when he said:

"I took the money to invest in cotton futures, and I felt sure when I did so that I would not only get back the money and replace it, but expected large profits for myself."

The difference between larceny and breach of trust with fraudulent intent is in the taking. Let me now illustrate with a case of larceny. Suppose that instead of taking the money from the Camden office, of which he was in rightful possession, the plaintiff had taken the money from the Columbia office, of which he was not in possession, and the charge had been larceny. Suppose the plaintiff had said:

"I took the money and did not enter it upon the books as I expected fully to return it. My offense was a mere trespass."

Even if the jury should take that view of it and acquit the plaintiff, I cannot conceive that the Court would allow a verdict for malicious prosecution to stand.

We are not called upon to pass upon the guilt of the plaintiff. The question is, Was this malicious prosecution? Was there probable cause? I think there was probable cause and cannot concur.

MR. JUSTICE HYDRICK concurs in the opinion of MR. JUSTICE FRASER.