291 S.W. 412 | Ky. Ct. App. | 1927
Affirming.
The appellant and plaintiff below, Mrs. E. Lula Davis, filed this ordinary action in the Jefferson circuit court against appellee and defendant below, W.J. Brady, seeking to recover of him damages for an alleged malicious prosecution instituted against her by defendant's son and agent, under the provisions of section 1213a of the present Kentucky Statutes, commonly known as the *386 "cold check" statute. The answer was a denial, and at the close of plaintiff's testimony defendant moved for a peremptory instruction in his favor, which the court overruled, and a similar motion by him at the close of all the testimony shared a like fate. The court then submitted the case to the jury under 16 instructions, and it returned a verdict in favor of defendant, followed by a judgment dismissing the petition, and plaintiff's motion for a new trial was overruled, and she prosecutes this appeal, complaining chiefly of the instructions submitted to the jury. But, since we have concluded that defendant's motion for a peremptory instruction should have prevailed, it will not be necessary to determine the questions raised by plaintiff's counsel in their criticism of the instructions under which the case was submitted.
In the three recent cases from this court of Bazzell v. Illinois Central Railway Co.,
In stating the rule the text in Corpus Juris says: "It is generally declared that actions for malicious prosecution are not favored, especially where the charge is of a crime which particularly affects the public. Public policy favors prosecutions for crimes and affords such protection to the citizen causing the prosecution of another in good faith and on reasonable grounds as is essential to public justice, without the sacrifice of the right to the individual;" *387 while the author of R. C. L. in stating the rule uses this language: "The action for malicious prosecution is not favored in law, and hence has been hedged about by limitations more stringent than those in the case of almost any other act causing damage to another, and the courts have allowed recovery only when the requirements limiting it have been fully complied with. The disfavor with which the action is looked upon is especially marked in cases where the suit is being brought for the institution of criminal proceedings against plaintiff, as public policy favors the exposure of crime, which a recovery against a prosecutor obviously tends to discourage."
The cases in the notes to the texts demonstrate that the rule as so stated is almost if not entirely universal. Notwithstanding, however, the existence of the rule, one is not permitted to maliciously and without probable cause procure the arrest of another under a criminal charge, and whenever the arrest is so made and the criminal prosecution has been terminated by final trial, or dismissal by the prosecuting authorities or by the prosecutor himself, and without the voluntary procurement of the defendant in the prosecution (the plaintiff in the malicious prosecution suit) an action will lie based upon the two essentials of (a) malice in the institution of the prosecution, and (b), that it was done without probable cause, and the first essential may be presumed from the absence of the second one without proof of actual malice. So that, the four prerequisites to the sustaining of the damage action, as stated in the case of Graziani v. Ernst.
The Grubbs case supra, and those of Schott v. Indiana National Life Insurance Co.,
The section of the statute creating the offense for which plaintiff was arrested (1213a) requires that the drawing of the check shall be for a fraudulent purpose, with the knowledge at the time that there was not sufficient funds in the bank upon which it was drawn to pay it; or, that the drawer of the check after uttering or delivering it drew other checks upon his deposit, not leaving enough money in the bank on which the original check was drawn to pay it, in either of which cases the offense is committed, and the last literary paragraph of the statute says: "The making, drawing, uttering or delivering of such check, draft or order as aforesaid, shall be primafacie evidence of intent to defraud." Whether that paragraph applies only to the original drawing of the check or draft andnot to the subsequent reducing of the deposit not leaving enough to meet the originally drawn check we need not determine; for, if it applies only to the one and not to the other then the mere fact of subsequent withdrawals would render the drawer of the check liable to prosecution. On the other hand, if the prima facie presumption should be construed so as to apply both to the original drawing as well as the intent and purpose of subsequent withdrawals whereby the deposit was reduced below the amount of the check as originally drawn, then the facts of this case, under the very terms of the statute, created a prima facie presumption of plaintiff's guilt of the offense for which she was arrested.
It is universally the rule if the defendant in a malicious prosecution action submits the facts known to him to a reputable attorney and the latter advises the arrest, such advice will constitute probable cause, and which *390 rule is so well settled as to require the citation of no cases or authorities in support of it. If, therefore, in this case defendant's agent had submitted the facts to an attorney we can scarcely imagine what other advice he could have given, except that under them plaintiff was both technically and prima facie guilty. It will be observed that there is no requirement in the statute for the prosecutor to notify the drawer of the check of its being dishonored for want of funds to pay it. It is, therefore, clearly apparent to us that there existed probable cause for the issuing of the warrant of arrest in this case, even if the defendant is liable for what his agent did in the premises, and if we should further concede that the latter is responsible for the issuing of the warrant, but which he denied under the facts stated supra.
Briefly noticing requisite (4) supra, i. e., the proper termination of the criminal prosecution, it will be observed that the order made by the justice recites, in substance, that it was done by agreement because plaintiff agreed to and did pay the check. We held in the case of Commonwealth v. McCall,
We, therefore, conclude that the court erred in not sustaining defendant's motion for a peremptory instruction in his favor, and since the jury returned a like verdict under the instructions of the court there is no occasion to inquire whether those instructions were or not proper.
Wherefore, the judgment is affirmed. *391