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1222 S.W.)

| plaintiff was remanded by the Court of Civil F. W. WOOLWORTH CO. V. CONNORS. Appeals, and defendant brings certiorari.

Judgment of the Court of Civil Appeals re(Supreme Court of Tennessee. May 17, 1920.)

versed, and action dismissed. 1. Malicious prosecution 19 “Probable cause" defined.

M. S. Ross and Cherry & Steger, all of The existence of “probable cause,” which is Nashville, for plaintiff in error. the existence of such facts and circumstances C. H. Rutherford and John W. Hilldrop, as would excite in a reasonable mind the belief both of Nashville, for defendant in error. that the person charged was guilty of crime, is a complete defense, though the person is innocent.

MCKINNEY, J. This is an action for ma(Ed. Note.-For other definitions, see Words

licious prosecution. and Phrases, First and Second Series, Probable

The defendant in error was prosecuted by Cause.)

the plaintiff in error in the city court of

Nashville for the theft of some braid, but 2. Malicious prosecution On 18(5) Probable cause for prosecution for theft held to have

was acquitted. This suit immediately folexisted.

lowed. Where braid was taken from a counter of

One of the defenses interposed to this acdefendant's store, and the manager was in- tion by the plaintiff in error was that of prob formed by two trusted employés that plaintiff, able cause. a stranger, who attempted to leave the store,

A very brief outline of the facts upon took the braid, which was found at another which the prosecution was predicated is as counter, there was probable cause for institu- follows: As Mr. Hanchett, manager or the tion of a prosecution against plaintiff for theft. plaintiff in error's store in Nashville, was 3. Malicious prosecution Ow71(2) Probable about to leave the building one afternoon, cause a mixed question of law and fact.

he was called by Miss Kimbro, one of the The question of probable cause is a mixed clerks in said store, and told that the defendquestion of law and fact, and whether the cir- ant in error had taken some braid from cumstances alleged to show it are true and counter No. 7 without paying for same, and existed is a matter of fact; but whether, sup- had started to leave the store, when she appreposing them to be true, they amount to a probable cause, is a question of law.

hended her and took from under her arm a

package, to which were attached two packages 4. Appeal and error Om301 –Judgment revers. of braid, and she exhibited the said package, ed, without remand, though motion for new trial did not specify error in refusing peremp. About the time that Mr. Hanchett came over

with the braid attached, to Mr. Hanchett, tory instruction.

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 call 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 em 164-Judgment may be ren

After the defendant in error was acquitted dered for defendant on motion for new trial, in the city court, she was indicted in the defense being established.

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. That case, judgment for defendant.

however, is in no sense connected with the 6. Appeal and error w301-Refusal of per- ment in that case was had subsequent to the

case we are now considering, as the indictemptory instruction must be assigned in mo. tion for new trial.

time at which this suit was instituted. For the appellate court to review the re

[1] In considering the defense of probable fusal of a peremptory instruction, it should be cause the question of the guilt or innocence assigned as error in motion for new trial, for of the defendant in error is not necessarily the purpose of giving the lower court an op- involved. She may have been entirely inportunity to correct the

nocent, and still the plaintiff in error could

have relied upon this defense, if properly Certiorari to Court of Civil Appeals.

made out. Action by Gustine Connors against the F. On this point the Court of Civil Appeals W. Woolworth Company. A judgment for / very properly says:

cror.

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

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"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 by the accused.. If men were not allowed to act state of facts in the mind of the prosecutor as upon such grounds, crimes would often go unwould lead a person of ordinary caution and punished for want of prosecutors. This action prudence to believe, or entertain an honest or is only intended to apply to cases where a strong suspicion, that the person is guilty. It criminal accusation is made against an innocent does not depend on the actual state of the case man through malice, and in the absence of even in point of fact, but upon the honest and rea- a fair and reasonable probability of its truth." sonable belief of the party commencing the prosecution. In order to maintain an action for In the case of Hall v. Hawkins, 5 Humph. malicious prosecution, it is very clear that the 357, the court said: plaintiff must aver and prove that the suit

Probable cause is the existence of such facts complained of was commenced and prosecuted without reasonable or probable cause, and that and circumstances as would excite in a reasonit was malicious. The warrantlessness of the able mind the belief that the person charged suit may, in many instances, be so obvious as

was guilty of the crime for which he was prosethat 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 the particular suit upon the existing facts for the prosecution." known to him." Newell on Malicious Prosecu

The foregoing quotations from our authortion, 252.

ities 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:

holding of this court, and, with this rule of “The public interest is concerned that offenses interpretation, it is but necessary to apply should not go unpunished. It is a test of the same to the facts of this case in order to de impropriety of such prosecutions that defend termine whether this defense has been prop ants are acquitted. The true and legal prin- erly made out. ciple is, Had the prosecutor ground to think [2, 3] The uncontroverted facts upon which that a felony had been committed, with the in- the plaintiff in error relies in support of its formation he possessed at the time of the com- defense of probable cause are as follows: mencement of the prosecution? If he had, he

First. The taking of the braid. ought not to be subject to damages in this

Second. The information given by Miss action. "To sustain an action for a malicious prosecu

Kimbro and Miss Clardy that the defendant tion, there must not only be malice, but a want in error was the person who took the braid. of probable cause. In the absence of either of

Third. That these two ladies were trusted these requisites, the action falls to the ground. employés, in whom Mr. Hanchett had contiHence the want of probable cause for a prose- dence, and whose statements be relied upon cution is the test of this action. Though malice and believed. exists, if in the estimation of a rational and Fourth. The exhibition of the two packdispassionate mind there be probable cause for ages of braid attached to the package of tabprosecution, the action cannot be sustained. With the information that Kelton possessed, he lets, and five packages of braid lying on the had reasonable ground to believe that a felony

post card counter. had been committed. He ought not, in justice

Fifth. The attempt of the defendant in and sound policy, to be mulct in dainages and error to get out of the store. costs for endeavoring to detect and punish such Sixth. The defendant in error was a offenses."

stranger to Mr. Hanchett, Miss Kimbro, and In the case of Raulston v. Jackson, 1 Sneed, towards her any ill will or unkind feeling.

Miss Clardy, neither of whom entertained 128, the court said:

The Court of Civil Appeals, in its opinion, “The law on this point is, and should have states that the defendant in error introduced been so charged by the judge, that if the jury proof to disprove the evidence introduced by found from the proof that the defendant, at the the plaintiff in error on the question of probtime he instituted the prosecution, acted upon able cause, but does not state what said proof such a state of facts known to him, or derived from reliable information, as would induce a

consists of, and after a careful reading of the belief in the mind of a prudent, discreet man record we have been unable to find any conthat the crime had been committed and by the tradictory evidence on these propositions. person he was about to prosecute, he was not Counsel for the defendant in error met this liable.

by saying that the witnesses for the plaintiff “The question is not whether the defendant in error have contradicted themselves in their is really guilty, but was there good and rea- testimony, so as to destroy their evidence; sonable grounds for the prosecutor to believe but we are unable to find any contradictions he was.

"Instead of requiring direct evidence of the on material matters. fact of the crime, it may certainly often hap

As to the facts set forth above, constituting pen that no crime was in fact committed, and probable cause, as contended for by the plainyet the prosecutor justifiable, because of the tiff 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 had probable cause for causing the detention necessarily involved in this inquiry.

and arrest of the plaintiff, Gustine Connors." In Cooper v. Flemming, 114 Tenn. 40, 84 S.

It will thus be seen that the grounds for W. 801, 68 L. R. A. 849, this court said:

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. Barnes y. 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

The reason for the rule, requiring that a substantial information,

motion for peremptory instructions must be We are of the opinion that they do make a assigned as error in the motion for a new case of probable cause. After reviewing our

trial, is to give the trial court an opportunity decisions on this question, we find several to correct the error previously made, and to cases where this defense was sustained, avoid burdening the higher courts with the where the facts were not as strong as they work of correcting errors which the trial are in the present case. This being true, the court could have corrected. The error comtrial judge should have sustained the motion mitted by the trial court was in not holding of the plaintiff in error for a directed verdict. that, as a matter of law, the defense of prob

[4-6] It is insisted that this court cannot able cause had been made out, and directing a dismiss the suit, but will have to remand it, verdict for the plaintiff in error. for the reason that, in its motion for a new

On the motion for a new trial plaintiff in trial, the plaintiff in error did not assign as

error again insisted that the court should one of the grounds therefor that the court have held, as a matter of law, that the deerred in not granting its motion for peremp fense of probable cause had been shown, and tory instructions.

thus the court was given an opportunity to It appears that the plaintiff in error, at the correct the error previously made. conclusion of all the evidence, moved for

We think this was, in effect, challenging peremptory instructions on three grounds, as the action of the court in not sustaining the follows:

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 de base a verdict. “(2) That there was probable cause as

fendant in error and upon the further ground matter of law for the prosecution of Mrs. Con that the undisputed evidence made out a case nors, as alleged in this case.

of probable cause. “(3) That the defendant, F. W. Woolworth In Southern Railway Co. v. Lewis & AdCompauy, or its agent, C. W. Hanchett, acted cock Co., 139 Tenn. 44, 201 S. W. 133, L. R. upon the advice of counsel in the prosecution A. 19180, 976, this court said: of Mrs. Connors, particularly that there was probable cause, which is a matter for the court court erred in not peremptorily instructing the

"An assignment to the effect that the trial to determine."

jury is equivalent to an assignment of error This motion for peremptory instructions that there was no evidence to support the ver

dict, since under our practice there could be was denied by the court. On motion for a new trial, among the

no peremptory instructions, unless there was

no evidence to the contrary.many grounds assigned, were the two following:

We think the converse of this would be

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

It results, therefore, that the judgment of (2) “The uncontroverted testimony, and all the Court of Civil Appeals, remanding the the testimony in the case taken together, shows case, will be reversed, and an order will be that C. W. Hanchett, manager of the defendant, entered here dismissing the suit.

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Mehaffy, Donham & Mehaffy, of Little WALTON V. COMMISSIONERS OF LIGHT Rock, for appellant. IMPROVEMENT DIST. NO. 1 OF CITY N. A. McDaniel, of Benton, for appellees.

OF BENTON. (No. 12.) (Supreme Court of Arkansas. May 24, 1920. 'lidity of an improvement district in the city

SMITH, J. [1] This suit questions the va. On Rehearing, June 28, 1920.)

of Benton organized for the purpose of pur1. Electricity Cm 12-On question whether pe- chasing an electric light plant from a comtitioners for improvement district are ma pany which had allowed its franchise, ob jority 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. 8 5717, the value of railroad property must be taken into

Constitution. account in view of Acts 1911 p. 244, § 14, re

The court below found otherwise and pre lating to the assessment of railroads for gener- pared an elaborate opinion discussing the al taxation purposes.

various issues raised in the case. But in this

opinion the court held that the value of the On Rehearing.

railroad property lying in the city should be 2. Electricity Cm 11/2-Presumption that cor. excluded. But, in connection with this find.

porate officers had authority to sign petition ing, the court also found that, if it was in for improvement district held overcome by error in excluding the railroad property, the evidence.

petition did not have a majority in value; Where a petition for the establishment of and there appears to be no doubt that such an improvement district for the purchase of an is the case. electric lighting plant, under Kirby's Dig. $ The statute provides that5717, disclosed that certain corporations had signed the petition by their secretary and treas

"In ascertaining whether the petition for imurer, the presumption that they were author-provement of any kind is signed by a majority ized to do so was overcome by undisputed tes of the owners in value of the real property in timony of such officers themselves that they the district adjoining the property to be afhad no authority to sign.

fected, the council shall take and be governed

by the valuation placed upon the property as 3. Electricity on 112-Presumption of owner- shown by the last county assessment on file in

ship by signers of improvement petition from the county clerk's office. Women, married or possession of lands or payment of taxes is single, may sign the petition; guardians may prima facie only.

sign for their wards, and executors or adminisIn determining whether a requisite major-trators may sign for the estates represented by ity in value has been obtained for petition for them." Section 5717, Kirby's Digest. the establishment of an improvement district for the purchase of an electric lighting plant, In regard to the assessment of railroads under Kirby's Dig. & 5717, the presumption of for general taxation purposes, the statute ownership must be indulged in favor of persons provides that, in possession of or who paid taxes on lands to which they have no title of record; but such

"The buildings and side tracks of railroads presumption is prima facie only, and may be shall be assessed as real estate, and each build

ing or side track shall be assessed in the inovercome by evidence.

corporated town or district where located. 4. Electricity Cm 11/2-Evidence held to over. Main track shall also be assessed as real estate,

come prima facie presumption of ownership and it shall be apportioned for assessment and of signers of improvement petition who taxation between the several towns and school were in possession or paid taxes.

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- 241), and that rolling stock, materials, and by's Dig. $ 5717, contained a majority in value, stores shall be assessed as personal property, evidence held sufficient to destroy the prima and that assessment distributed in the same

manner. facie presumption of ownership of signers who were in possession of lands or who paid taxes thereon.

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

the official certificate of the commission P. Henderson, Chancellor.

showing the railroad assessment in the city Suit by J. W. Walton against the Commis- of Benton was furnished to and filed with the sioners of Light Improvement District No. 1 clerk of the county court. In extending this of city of Benton. Decree for defendants, assessinent on the tax books the clerk did not and plaintiff appeals. Reversed and remand separate the real estate from the personal ed, with directions.

property, but extended the entire assessment (222 S.W.) 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 If either is excluded, the petition does not the main track and the value thereof, the contain the necessary majority; if both are length of the side tracks and the value there- included, the petition does contain the necesof, and the value of the buildings, in the city sary majority. of Benton, and his explanation of his failure The general manager, who was also secreto extend these assessments properly was tary and treasurer, of the Owosso Manufacthat he did not know what part of the assess-turing Company, testified that he signed the ment to extend as personal property nor what name of that corporation to the petition, but part as real estate, and he had therefore ex- that there had been no resolution or other tended it all as personal property on the per- action of the board of directors authorizing sonal tax book. But, as appears from the him to do so. The secretaries of two other statute quoted, the buildings, main track, and corporations, who had signed the names of side tracks are assessed as real estate, and the corporation to the petition, gave substanthe clerk's lack of knowledge of this provi- tially the same testimony. sion of the statute did not alter the char- [2] The names of these corporations were acter of the property. The case presented is signed by the officers who would have signed not one where there has been a failure to the petition had authority in fact existed for assess the railroad property, for it was assess that action. In such case it is proper to ed, and properly so; and it will be observed that the statute does not require the deter- had been conferred, for, as we said in the

presume that authority for such signatures mination of the question of the value of the

case of City of Malvern v. Nunn, 127 Ark. property in the proposed district to be made from an inspection of the tax books, but the 418, 192 S. W. 909, the board of directors statute is that "the council shall take and be possesses the authority to authorize the governed by the valuation placed upon the signing of the corporate name to such petiproperty as shown by the last county assess- tions, and the secretary is one of the execument on file in the county clerk's office.”

tive officers who might perform that funcThe assessment of the railroad properties tion. But that presumption is overcome here was on file in the clerk's office, and the rail- by the affirmative and undisputed testimony road was no doubt required to pay the taxes of these officers themselves that no authority levied on that assessment.

to sign had been conferred upon them. Had the railroad company desired this [3] A presumption of ownership is also to improvement and, by proper authorization, be indulged in favor of persons in possession had signed the petition for it, we think, with- of or who pay taxes on lands to which they out question, it would have been proper for have no title of record; and it is urged that the value of its property, as shown by the this presumption should be treated as conlast county assessment on file in the county clusive, inasmuch as they might be owners clerk's office, to be taken into account, be- under a will or by descent cast, and this court cause, within the meaning of the statute, the has held in the case of City of Malvern v. assessment made by the tax commission is a Nunn, supra, that such owners have the right part of the county assessment. And if this to petition for the creation of improvement be true, it must also be true that the value districts. of the railroad property should be taken into

[4] We think, however, that this presumpaccount in determining whether the requisite tion is only prima facie. And we are also of majority in value had been obtained by those opinion that this prima facie presumption who petitioned for the establishment of the has been overcome by the testimony on the improvement district.

subject. Judge W. H. Evans testified that he It follows therefore that the necessary ma- had been a resident of Benton for many jority has not been obtained, and the decree years, and had been judge of the circuit court of the court will therefore be reversed, and for 12 years; that prior to that service he the cause remanded, with directions to en- had been clerk of the circuit court and ex join the commissioners of the proposed dis- officio recorder for 6 years, and that he owntrict from further proceeding as prayed in ed a set of abstract books, and had been enthe complaint.

gaged in the abstract business. He testiOn Rehearing.

fied that he checked over the petition and

spent from 2 to 3 hours per day for 8 or 10 Upon the petition for rehearing it is urged days in a diligent search to ascertain the that the petition for the organization of the source of title of the petitioners now under improvement district contained a majority in consideration, and that the petitioners had value of the property even though the rail- no deeds of record to the lands assessed to road assessment is included. Such appears them. Many landowners negligently fail to to be the case, if we include in the sum total have their deeds recorded, and such, no of the assessed values of the petitioners the doubt, is the case here, but in the case of City property of certain petitioners who had no of Malvern v. Nunn, supra, we said:

222 S.W.-67

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