130 So. 768 | Ala. Ct. App. | 1930
Under the decisions in McCarty v. Williams,
In actions for malicious prosecutions growing out of the suing out of attachment or garnishment, as in all other actions for malicious prosecutions, malice on the part of defendant must be alleged and proved. McCarty v. Williams, supra. But in such actions growing out of the suing out of attachment or garnishment, the malice of the agent will not be imputed to the principal and mere knowledge on the part of the principal, of an agent's unauthorized action, will not make silence, or mere noninterference, in all cases, amount to ratification. M. M. Ry. Co. v. Jay,
Again, the malicious wrong averred in counts 3, 4, and 5 is the malicious wrong of defendants themselves, as contra-distinguished from the wrong of the servant or agent only for the consequences of which the defendant is responsible merely because of the relation of principal to the agent who actually committed the act complained of. To sustain these counts proof of actual malice on the part of defendants towards plaintiff was essential. No such proof was had. City Delivery Co. v. Henry,
As laid down in the law books, the elements of the tort of malicious prosecution are: (1) The commencement or continuance of an original, criminal, or civil action. (2) Its legal causation by the present defendant against plaintiff who was defendant in the original proceeding. (3) Its bona fide termination in favor of the present plaintiff. (4) The absence of probable cause for such proceeding and the presence of malice on the part of the present defendant. (5) Damages conforming to legal standards resulting to plaintiffs. If any of the foregoing elements are lacking, there can be no recovery. The law does not lend itself to the prosecution of a suit for damages for a malicious prosecution where that suit is but a retaliation on the part of plaintiff, based upon a suit where defendant was bona fide attempting to enforce a claim on which an adjudication was sought in a civil action. 38 Corpus Juris, 386 (5).
In making proof of the material elements as above defined when the suit is based on a civil action, the fact that defendant failed in the suit complained of will not sustain the action without additional evidence of malice and want of probable cause. Stewart v. Sonneborn,
In actions such as here under consideration, exemplary damages may only be recovered where there is shown to be actual malice in the sense of personal ill will or hatred and want of probable cause, or where the proceedings complained of were commenced under circumstances of oppression, wantonness, or a reckless disregard of plaintiff's rights. 38 Corpus Juris, 448 (102). No such evidence appears in this record, and therefore charges authorizing a verdict for exemplary damages were erroneously given.
For the errors pointed out, the judgment is reversed, and the cause is remanded.
Reversed and remanded.