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The question of probable cause is a mixed question of law and fact, and whether the circumstances alleged to show it are true and existed is a matter of fact; but whether, supposing them to be true, they amount to a probable cause, is a question of law.

4. Appeal and error 301-Judgment reversed, without remand, though motion for new trial did not specify error in refusing peremptory instruction.

| plaintiff was remanded by the Court of Civil Appeals, and defendant brings certiorari. Judgment of the Court of Civil Appeals reversed, and action dismissed.

M. S. Ross and Cherry & Steger, all of Nashville, for plaintiff in error.

C. H. Rutherford and John W. Hilldrop, both of Nashville, for defendant in error.

MCKINNEY, J. This is an action for malicious prosecution.

The defendant in error was prosecuted by the plaintiff in error in the city court of Nashville for the theft of some braid, but was acquitted. This suit immediately followed.

One of the defenses interposed to this action by the plaintiff in error was that of probable cause.

A very brief outline of the facts upon which the prosecution was predicated is as follows: As Mr. Hanchett, manager or the plaintiff in error's store in Nashville, was about to leave the building one afternoon, he was called by Miss Kimbro, one of the clerks in said store, and told that the defendant in error had taken some braid from counter No. 7 without paying for same, and had started to leave the store, when she appre

hended her and took from under her arm a package, to which were attached two packages of braid, and she exhibited the said package, About the time that Mr. Hanchett came over with the braid attached, to Mr. Hanchett.

In an action for malicious prosecution, to where Miss Kimbro and the defendant in erwhere defendant moved for peremptory in-ror were standing, near the north door of said structions, the appellate court may reverse a building, he heard another clerk, Miss Clardy, judgment for plaintiff, without remand, where cail to Miss Kimbro and state that the plaintiff the facts established that there was probable in error had laid some of the packages of braid cause, though the motion for new trial did not on the post card counter, and five packages allege error in refusing the peremptory instruc- of braid were observed lying upon said table. tions, where it did assert that probable cause Mr. Hanchett, on this information, had the was established, and there was no evidence to defendant in error arrested, and prosecuted support verdict. her in the city court, as above stated.

5. New trial 164-Judgment may be rendered for defendant on motion for new trial,

defense being established.

After the defendant in error was acquitted

in the city court, she was indicted in the criminal court of Davidson county for the Where there was no evidence to support a verdict for plaintiff, and a defense was estab-theft of said braid, and on a trial of the case lished by the uncontradicted facts, it is proper, a verdict of not guilty was reported by the on motion for new trial, for the court to render jury, and she was discharged. judgment for defendant. however, is in no sense connected with the case we are now considering, as the indictment in that case was had subsequent to the time at which this suit was instituted.

6. Appeal and error 301-Refusal of peremptory instruction must be assigned in motion for new trial.

That case,

[1] In considering the defense of probable cause the question of the guilt or innocence of the defendant in error is not necessarily

For the appellate court to review the refusal of a peremptory instruction, it should be assigned as error in motion for new trial, for the purpose of giving the lower court an op-involved. She may have been entirely inportunity to correct the error.

Certiorari to Court of Civil Appeals.

Action by Gustine Connors against the F. W. Woolworth Company. A judgment for

nocent, and still the plaintiff in error could have relied upon this defense, if properly made out.

On this point the Court of Civil Appeals very properly says:

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

by the accused. If men were not allowed to act upon such grounds, crimes would often go unpunished for want of prosecutors. This action is only intended to apply to cases where a criminal accusation is made against an innocent man through malice, and in the absence of even a fair and reasonable probability of its truth."

In the case of Hall v. Hawkins, 5 Humph. 357, the court said:

"As to the first point, the law as to reason- [to believe the criminal act had been done, and able or probable cause is defined to be such a state of facts in the mind of the prosecutor as would lead a person of ordinary caution and prudence to believe, or entertain an honest or strong suspicion, that the person is guilty. It does not depend on the actual state of the case in point of fact, but upon the honest and reasonable belief of the party commencing the prosecution. In order to maintain an action for malicious prosecution, it is very clear that the plaintiff must aver and prove that the suit complained of was commenced and prosecuted without reasonable or probable cause, and that it was malicious. The warrantlessness of the suit may, in many instances, be so obvious as that malice may be inferred from it. The ques-cuted; that is, acting upon the facts within the tion of probable cause applies to the nature of knowledge of the prosecutor, if a reasonable the suit, and the point of inquiry is whether man would believe the party guilty of the the defendant had probable cause to maintain crime charged, there would exist probable cause for the prosecution." the particular suit upon the existing facts known to him." Newell on Malicious Prosecution, 252.

"Probable cause is the existence of such facts

and circumstances as would excite in a reasonable mind the belief that the person charged was guilty of the crime for which he was prose

The foregoing quotations from our authorities give, in the main, the definition as to

In Kelton v. Bevins, Cooke, 90, 5 Am. Dec. what constitutes probable cause under the 670, Judge Overton said:

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To sustain an action for a malicious prosecution, there must not only be malice, but a want of probable cause. In the absence of either of these requisites, the action falls to the ground. Hence the want of probable cause for a prosecution is the test of this action. Though malice exists, if in the estimation of a rational and dispassionate mind there be probable cause for prosecution, the action cannot be sustained. With the information that Kelton possessed, he had reasonable ground to believe that a felony had been committed. He ought not, in justice and sound policy, to be mulct in damages and costs for endeavoring to detect and punish such offenses."

holding of this court, and, with this rule of interpretation, it is but necessary to apply same to the facts of this case in order to determine whether this defense has been properly made out.

[2, 3] The uncontroverted facts upon which the plaintiff in error relies in support of its defense of probable cause are as follows:

First. The taking of the braid.

Second. The information given by Miss Kimbro and Miss Clardy that the defendant in error was the person who took the braid.

Third. That these two ladies were trusted employés, in whom Mr. Hanchett had confidence, and whose statements he relied upon and believed.

Fourth. The exhibition of the two packages of braid attached to the package of tablets, and five packages of braid lying on the

post card counter.

Fifth. The attempt of the defendant in error to get out of the store.

Sixth. The defendant in error was a stranger to Mr. Hanchett, Miss Kimbro, and Miss Clardy, neither of whom entertained In the case of Raulston v. Jackson, 1 Sneed, towards her any ill will or unkind feeling. 128, the court said:

"The law on this point is, and should have been so charged by the judge, that if the jury found from the proof that the defendant, at the time he instituted the prosecution, acted upon such a state of facts known to him, or derived from reliable information, as would induce a belief in the mind of a prudent, discreet man that the crime had been committed and by the person he was about to prosecute, he was not liable.

"The question is not whether the defendant is really guilty, but was there good and reasonable grounds for the prosecutor to believe he was. *

"Instead of requiring direct evidence of the fact of the crime, it may certainly often happen that no crime was in fact committed, and yet the prosecutor justifiable, because of the

The Court of Civil Appeals, in its opinion, states that the defendant in error introduced proof to disprove the evidence introduced by the plaintiff in error on the question of probable cause, but does not state what said proof consists of, and after a careful reading of the record we have been unable to find any contradictory evidence on these propositions.

Counsel for the defendant in error met this by saying that the witnesses for the plaintiff in error have contradicted themselves in their testimony, so as to destroy their evidence; but we are unable to find any contradictions on material matters.

As to the facts set forth above, constituting probable cause, as contended for by the plaintiff in error, the defendant in error in no

(222 S.W.)

rects her proof to the question of her inno- [F. W. Woolworth Company as a matter of law, cence, which, as previously stated, is not necessarily involved in this inquiry.

In Cooper v. Flemming, 114 Tenn. 40, 84 S. W. 801, 68 L. R. A. 849, this court said:

had probable cause for causing the detention and arrest of the plaintiff, Gustine Connors."

It will thus be seen that the grounds for peremptory instructions and the motion for "The question of probable cause is a mixed a new trial are substantially the same. It question of law and fact. Whether the circum- is true that it was not alleged in the motion stances alleged to show it are true and existed for a new trial that the court was in error is a matter of fact, but whether, supposing in not granting the motion for peremptory them to be true, they amount to a probable instructions; but it called the court's attencause, is a question of law."

tion to the errors committed by him, which As previously stated, the facts relied upon were the basis for the peremptory instrucby the plaintiff in error to constitute probable tions asked for, and, if the court had corcause are not in dispute, and it only re-rected the errors on the motion for a new mained for the court to apply the law to the trial, it would have followed, under our pracuncontroverted facts, and say whether they tice, that he would have rendered a judgconstituted probable cause. We find nothing ment for the plaintiff in error. in the record to negative the idea that Mr. Noel, 131 Tenn. 130, 174 S. W. 276. Hanchett was acting in good faith, based on substantial information.

Barnes v.

The reason for the rule, requiring that a motion for peremptory instructions must be assigned as error in the motion for a new trial, is to give the trial court an opportunity to correct the error previously made, and to avoid burdening the higher courts with the work of correcting errors which the trial court could have corrected. The error committed by the trial court was in not holding that, as a matter of law, the defense of probable cause had been made out, and directing a verdict for the plaintiff in error.

We are of the opinion that they do make a case of probable cause. After reviewing our decisions on this question, we find several cases where this defense was sustained, where the facts were not as strong as they are in the present case. This being true, the trial judge should have sustained the motion of the plaintiff in error for a directed verdict. [4-6] It is insisted that this court cannot dismiss the suit, but will have to remand it, for the reason that, in its motion for a new trial, the plaintiff in error did not assign as one of the grounds therefor that the court erred in not granting its motion for perempfense of probable cause had been shown, and tory instructions.

It appears that the plaintiff in error, at the conclusion of all the evidence, moved for peremptory instructions on three grounds, as follows:

On the motion for a new trial plaintiff in error again insisted that the court should have held, as a matter of law, that the de

thus the court was given an opportunity to correct the error previously made.

We think this was, in effect, challenging the action of the court in not sustaining the motion for peremptory instructions, upon the ground that there was no evidence upon

"(1) That there is no evidence on which to which to base a judgment in favor of the debase a verdict.

a

"(2) That there was probable cause as matter of law for the prosecution of Mrs. Connors, as alleged in this case.

"(3) That the defendant, F. W. Woolworth Company, or its agent, C. W. Hanchett, acted upon the advice of counsel in the prosecution of Mrs. Connors, particularly that there was probable cause, which is a matter for the court to determine."

fendant in error and upon the further ground that the undisputed evidence made out a case of probable cause.

In Southern Railway Co. v. Lewis & Adcock Co., 139 Tenn. 44, 201 S. W. 133, L. R. A. 1918C, 976, this court said:

"An assignment to the effect that the trial court erred in not peremptorily instructing the jury is equivalent to an assignment of error

This motion for peremptory instructions that there was no evidence to support the ver

was denied by the court.

On motion for a new trial, among the many grounds assigned, were the two following:

(1) "There is no evidence to support the verdict."

(2) "The uncontroverted testimony, and all the testimony in the case taken together, shows that C. W. Hanchett, manager of the defendant,

dict, since under our practice there could be no peremptory instructions, unless there was no evidence to the contrary."

We think the converse of this would be true.

It results, therefore, that the judgment of the Court of Civil Appeals, remanding the case, will be reversed, and an order will be entered here dismissing the suit.

WALTON V. COMMISSIONERS OF LIGHT
IMPROVEMENT DIST. NO. I OF CITY

OF BENTON. (No. 12.)

Mehaffy, Donham & Mehaffy, of Little Rock, for appellant.

N. A. McDaniel, of Benton, for appellees.

SMITH, J. [1] This suit questions the va

(Supreme Court of Arkansas. May 24, 1920. lidity of an improvement district in the city

On Rehearing, June 28, 1920.)

of Benton organized for the purpose of pur1. Electricity 11⁄2-On question whether pe- chasing an electric light plant from a comtitioners for improvement district are ma-pany which had allowed its franchise, objority in value, railroad property considered. tained from that city, to forfeit. Several In determining whether the requisite ma- questions are raised which we find it unjority in value has been obtained by those who necessary to decide, as, in our opinion, the petition for the establishment of an improve-petition of the property owners does not conment district for the purchase of an electric tain a majority in value as required by the lighting plant, under Kirby's Dig. § 5717, the Constitution. value of railroad property must be taken into account in view of Acts 191 p. 244, § 14, relating to the assessment of railroads for gener-pared an elaborate opinion discussing the al taxation purposes.

On Rehearing.

The court below found otherwise and pre

various issues raised in the case. But in this opinion the court held that the value of the railroad property lying in the city should be excluded. But, in connection with this find

2. Electricity 11⁄2-Presumption that corporate officers had authority to sign petitioning, the court also found that, if it was in for improvement district held overcome by evidence.

error in excluding the railroad property, the petition did not have a majority in value; and there appears to be no doubt that such is the case.

The statute provides that—

"In ascertaining whether the petition for im

Where a petition for the establishment of an improvement district for the purchase of an electric lighting plant, under Kirby's Dig. § 5717, disclosed that certain corporations had signed the petition by their secretary and treasurer, the presumption that they were author-provement of any kind is signed by a majority ized to do so was overcome by undisputed testimony of such officers themselves that they had no authority to sign.

3. Electricity1⁄2-Presumption of ownership by signers of improvement petition from possession of lands or payment of taxes is prima facie only.

In determining whether a requisite majority in value has been obtained for petition for the establishment of an improvement district for the purchase of an electric lighting plant, under Kirby's Dig. § 5717, the presumption of ownership must be indulged in favor of persons in possession of or who paid taxes on lands to which they have no title of record; but such presumption is prima facie only, and may be overcome by evidence.

4. Electricity 12-Evidence held to overcome prima facie presumption of ownership of signers of improvement petition who were in possession or paid taxes.

of the owners in value of the real property in the district adjoining the property to be af

fected, the council shall take and be governed by the valuation placed upon the property as shown by the last county assessment on file in the county clerk's office. Women, married or single, may sign the petition; guardians may sign for their wards, and executors or administrators may sign for the estates represented by them." Section 5717, Kirby's Digest.

In regard to the assessment of railroads for general taxation purposes, the statute provides that

"The buildings and side tracks of railroads shall be assessed as real estate, and each building or side track shall be assessed in the incorporated town or district where located. Main track shall also be assessed as real estate, and it shall be apportioned for assessment and taxation between the several towns and school districts through which the railroads run acIn determining whether a petition for the cording to the actual mileage in each town and establishment of an improvement district to district" (section 14, Act 251, Acts 1911, p. purchase an electric lighting plant, under Kir-244), and that rolling stock, materials, and by's Dig. § 5717, contained a majority in value, evidence held sufficient to destroy the prima facie presumption of ownership of signers who were in possession of lands or who paid taxes thereon.

stores shall be assessed as personal property, and that assessment distributed in the same manner.

This assessment of railroad property is made by the state tax commission, and was

Appeal from Saline Chancery Court; J. properly made for the year in question, and P. Henderson, Chancellor.

Suit by J. W. Walton against the Commissioners of Light Improvement District No. 1 of city of Benton. Decree for defendants, and plaintiff appeals. Reversed and remanded, with directions.

the official certificate of the commission showing the railroad assessment in the city of Benton was furnished to and filed with the clerk of the county court. In extending this assessinent on the tax books the clerk did not separate the real estate from the personal property, but extended the entire assessment

(222 S.W.)

If either is excluded, the petition does not contain the necessary majority; if both are included, the petition does contain the necessary majority.

The general manager, who was also secretary and treasurer, of the Owosso Manufacturing Company, testified that he signed the name of that corporation to the petition, but that there had been no resolution or other action of the board of directors authorizing him to do so. The secretaries of two other corporations, who had signed the names of the corporation to the petition, gave substantially the same testimony.

on the personal tax book. He stated, how- [ record title to the property assessed to them, ever, that the assessment roll sent him by the and also the property of certain corporations. tax commission did show the length of the main track and the value thereof, the length of the side tracks and the value thereof, and the value of the buildings, in the city of Benton, and his explanation of his failure to extend these assessments properly was that he did not know what part of the assessment to extend as personal property nor what part as real estate, and he had therefore extended it all as personal property on the personal tax book. But, as appears from the statute quoted, the buildings, main track, and side tracks are assessed as real estate, and the clerk's lack of knowledge of this provision of the statute did not alter the character of the property. The case presented is not one where there has been a failure to assess the railroad property, for it was assessed, and properly so; and it will be observed that the statute does not require the determination of the question of the value of the property in the proposed district to be made from an inspection of the tax books, but the statute is that "the council shall take and be governed by the valuation placed upon the property as shown by the last county assessment on file in the county clerk's office."

The assessment of the railroad properties was on file in the clerk's office, and the railroad was no doubt required to pay the taxes levied on that assessment.

Had the railroad company desired this improvement and, by proper authorization, had signed the petition for it, we think, without question, it would have been proper for the value of its property, as shown by the last county assessment on file in the county clerk's office, to be taken into account, because, within the meaning of the statute, the assessment made by the tax commission is a part of the county assessment. And if this be true, it must also be true that the value of the railroad property should be taken into account in determining whether the requisite majority in value had been obtained by those who petitioned for the establishment of the improvement district.

It follows therefore that the necessary majority has not been obtained, and the decree of the court will therefore be reversed, and the cause remanded, with directions to enjoin the commissioners of the proposed district from further proceeding as prayed in the complaint.

On Rehearing.

Upon the petition for rehearing it is urged that the petition for the organization of the improvement district contained a majority in value of the property even though the railroad assessment is included. Such appears to be the case, if we include in the sum total of the assessed values of the petitioners the property of certain petitioners who had no 222 S.W.-67

[2] The names of these corporations were signed by the officers who would have signed the petition had authority in fact existed for that action. In such case it is proper to presume that authority for such signatures had been conferred, for, as we said in the case of City of Malvern v. Nunn, 127 Ark. 418, 192 S. W. 909, the board of directors possesses the authority to authorize the signing of the corporate name to such petitions, and the secretary is one of the executive officers who might perform that function. But that presumption is overcome here by the affirmative and undisputed testimony of these officers themselves that no authority to sign had been conferred upon them.

[3] A presumption of ownership is also to be indulged in favor of persons in possession of or who pay taxes on lands to which they have no title of record; and it is urged that this presumption should be treated as conclusive, inasmuch as they might be owners under a will or by descent cast, and this court has held in the case of City of Malvern v. Nunn, supra, that such owners have the right to petition for the creation of improvement districts.

[4] We think, however, that this presumption is only prima facie. And we are also of opinion that this prima facie presumption has been overcome by the testimony on the subject. Judge W. H. Evans testified that he had been a resident of Benton for many years, and had been judge of the circuit court for 12 years; that prior to that service he had been clerk of the circuit court and ex officio recorder for 6 years, and that he owned a set of abstract books, and had been engaged in the abstract business. He testified that he checked over the petition and spent from 2 to 3 hours per day for 8 or 10 days in a diligent search to ascertain the source of title of the petitioners now under consideration, and that the petitioners had no deeds of record to the lands assessed to them. Many landowners negligently fail to have their deeds recorded, and such, no doubt, is the case here, but in the case of City of Malvern v. Nunn, supra, we said:

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