123 Ark. 496 | Ark. | 1916
Appellees recovered damages, both compensatory and punitive, against appellant in a*suit for malicious, prosecution. Appellees brought separate suits against appellant and R. B. Malin, but by consent the causes were consolidated and tried together and a verdict rendered in each case against appellant Gordoii for $25 compensatory damages and $1,000 punitive damages, but a verdict was rendered in each case in favor of Malin. It was' alleged- in each of the complaint's that Malin and Gordon Conspired together to cause the arrest and prosecution "of appellees' upon the false charge of having removed and disposed of two bales of cotton, upon which •there existed a landlord’s lien in favor of Gordon, with •the intention of defeating said lien. Upon the' verdict being returned in favor of Malin appellant insisted that judgment be pronounced' in his favor notwithstanding the verdict, upon the ground that he alone could not be guilty of a conspiracy, and’inasmuch as a verdict was rendered'in Malin’s favor he is also discharged .from liability.- ..... ■ • ■
•The., evidence-is conflicting,-but the verdict of the jury -has resolved the conflicts in-appellees’.favor and, when so resolved,-the facts may be stated as follows:' Appellee MoLearn was a minor and made a crop of six acres on land which his brothers Ray and Raymond had rented from appellant.' Two other brothers had rented portions of appellant’s land /or the same year,'bu't'thev had made a final settlement of their accounts with appellant and had moved off the-place before "the cotton in question was sold. Appellee Arthur was also a minor and was employed by McLearn at the time of the sale of the cotton which resulted in their arrest. All of the Me-Learn brothers except appellee had rented lands from appellant and had agreed to pay the sum of $6.50 per acre money rent. • Their tenancy had expired and all of the McLeams were leaving the farm to take charge of another, and friction existed between them and appellant. Under' directions from appellant the McLeams had delivered their cotton at Marmaduke to a Mr. Waxmon, who receipted for the cotton received and credited the same to appellant’s account. There were also some 'Credits for wood which the McLeams had cut for appellant, and as a result of these credits there was no rent due appellant on the land on which the cotton in controversy was, produced. Upon the contrary, it was shown- that áppéllánt was slightly indebted to the McLeams, and paid a small balance when a -settlement was finally had. Much evidence was offered to the effect that the McLearns pressed appellant for a settlement, but were unable to procure one, as they were desirous of vacating appellant’s farm, and of taking possession of the other one which they had rented. Appellee McLearn started to haul a load of hay from the place when appellant forbade him doing so, and a fight ensued in which appellant was worsted, and he thereafter procured the arrest of appellee McLearn for assault and battery.
Appellees hauled the two bales of cotton to Halliday .on- December 23, where they sold it to Malin for -a cent a pound more than they had been able to procure from .Waxmon at Marmaduke. Before purchasing- the cotton Malin asked appellees about the existence of liens, but was told there were none, and he bought the cotton under the impression that it belonged to Arthur, and the check given in payment therefor was made payable to Arthur’s order. There was evidence also, of the faet that after loading the cotton appellees changed wagons, of which fact Malin was apprised after his purchase, and this tended to confirm his suspicions, after they had been aroused by appellant’s statements. In appellees ’ behalf, however, it was shown that the change was made on account of the condition of the road. When appellant learned of this sale he represented to Malin that his rent was not paid and that there was a balance of $80 or $85 due him and that the cotton was subject to his lien, and he told Malin of the circumstances under which the cotton had been removed and that he had forbidden the removal of any cotton, or .any product, until his rent was paid. Malin was made to believe from these statements that he would probably lose the money he had paid for the cotton, and he and appellant consulted about the kind of charge to prefer against appellees. Before taking any action, however, Malin conferred with the deputy prosecuting attorney and related to that officer all the facts of which he had knowledge and also what appellant had said, and he was advised by that officer to have appellees arrested. Appellant and Malin went together to the justice of the peace who issued the warrant of arrest, and both were sworn to the statement of fact upon which the warrant of arrest was issued, although only Malin signed it. Thereafter appellees were both arrested, and McLearn was in custody for five hours, during which time he was carried around as a prisoner in the town near which he lived while he was attempting to procure bondsmen to secure his release. He finally made the required bond and was discharged. Arthur was not so fortunate and failing to m'ake his bond he was confined in jail and kept there for three days. Before the trial the MoLearns told Malin that they owed appellant nothing, and this statement was repeated to appellant but was denounced by 'him as being false, but Malin became convinced their statement was true, and so advised the prosecuting attorney, who ordered the dismissal of the criminal charge against appellees, and thus the prosecution was elided..
Separate answers were filed by Malin and by appellant, and both denied the existence of any conspiracy to prosecute appellees falsely. Malin defended on the grounds of absence of malice, the advice of counsel, which he'had acted upon in good faith, and the existence of probable cause for his action. In support of his defense he testified that appellant told him the cotton was his, that he had a rent note signed by all the MeLearns when, in fact, he had no note, and that the rent was not paid, and he demanded the possession of the cotton and said, “.These boys have .sold that cotton and more than likely he (MeLeam) is fixing to get away.” Appellant and Malin went together to the justice of the peace and together fixed up the affidavit, whereupon Malin said to the justice of the peace that appellant was the man to make the affidavit and stated to appellant at the time, “I don’t 'know anything about it only what you say,” but appellant said, “No, you sign it,” and the officer said, “You can both sign it,” but Malin said, “He is the man who knows,” and the officer said, “You can both swear to it,” and this was done, although Malin alone signed his name to the affidavit.
Appellant’s defense is and was that he had probable cause to have appellees arrested, although he denies having done so. Under the allegations of his answer appellees are guilty of the crime charged in the warrant of arrest which was issued by the justice of the peace, and he testified that the action taken by him was done to protect his lien as landlord.
Appellant was cross-examined at length about his failure to consent to or to order the discharge of appellees prior to the time their discharge was ordered by the deputy prosecuting attorney upon Malin’s direction, and about the state of.his feelings towards appellees and particularly towards McLearn,,and.the. jury might have found -that his answers but ill-concealed the express malice which other facts and .circumstances tended to, establish. Appellant testified at the trial that, at the time of the removal and sale of the cotton, there was due him a balance of $80 or $85 on account of the rent, and had the jury credited this statement that this -sum, or any other sum, was then due him, the. verdict, under instruction numbered six, must necessarily have been in his favor.
But this is not a criminal prosecutiqn against appellant ¡and Malin. The complaint did not eharge.th.at they conspired together, to wrongfully procure appellees ’ prosecution, and proof of concert of action was necessary to support a finding of joint liability for the,tort committed. But the individual liability did not depend, upon the proof of the existence of a conspiracy. At least two. persons must be guilty to constitute an unlawful conspiracy, whereas one-, person alone may be guilty of conduct which furnishes the foundation for an action for malicious prosecution, even though such person induces another to set the machinery of the law in motion. The court submitted these questions to the jury under appropriate instructions, and ‘ the jury was told the circumstances under which 'one or the' other or both of -the defendants might be’ held liable. Here the jury had evidence to support its finding that appellant alone was liable for this prosecution, and their verdict in Málin’s' favo’r shows that they so found. It is true Malin signed the' affidavit and appellant did not" do so. But this'fact does "not necessarily make one liable* nor does it necessarily excuse the other. Malin may have been excused by the jury because of a finding in his favor that he had probable cause, or was not prompted by malice, or' was justified in acting upon the advice ■ o'f counsel; but the proof did not also' require a finding in appellant’s favor because'Malin was exonerated'from blame,’ nor because appellant did not actually make the affidavit. The rule in'such cases is Stated in 19 A.' & E. Eh'c. of Law (2nd ed.') p. 692, title “Malicious prosecution,” as follows:
/‘One who advises, and procures a -third person to. institute a' malieidus.. prosecution may Jbe .held liable in damages therefor, and one who aided and abetted the prosecutor in such action- is-liable- equally with the latter for damages therefor. Nor will the fact that the person Who, at the defendant’s instigation, made the complaint had probablé cause' for believing it to be well founded avail the defendant'as a defense where he acted without probable cause.”
The same authority also states the law to be:
' “But it is hot necessary to prove that the defendant was .the originator of the proceedings complained' of. If he participated voluntarily in the' malicious prosecution,- and -it was carried on with his countenance and approbation, he will be liable. ” ■
But we are not called upon to approve the law thus broadly stated to uphold the findings of liability against appellant, for the proof here is that he, not only countenanced and gave approbation to the prosecution, but, that he, in fact instigated it. Bee cases cited in notes to the text quoted, and see also 26 Cyc. p. 17, and cases there cited.
