Medlin v. Clarksdale Steam Laundry

101 So. 557 | Miss. | 1924

Cook, J.,

delivered the opinion of the court.

The appellant, L. D. Medlin, instituted this suit against the Clarksdale Steam Laundry and'F. A. Buchanan, its general manager, for damages for an alleged malicious prosecution, and at the conclusion of the testimony for both the plaintiff and the defendant the court below granted a peremptory instruction for the defendants', and from the judgment entered in pursuance of this instruction this appeal was prosecuted.

The appellant was employed by the defendant Glarksdale Steam Laundry as a driver of one of its delivery wagons. As a part of his duties he was required to collect the laundry • charges from the customers to whom laundry was delivered, but there is a sharp conflict in the testimony as to whether he was authorized to extend credit to any customers to whom he delivered laundry. The appellant testified that on July 5,19'21, he was called into the office of the laundry company by F. A. Buchanan, its general manager, and there charged with a shortage of nineteen dollars and sixty-four cents for moneys collected by him and due and owing to the laundry company; that he then offered to show Mr. Buchanan uncollected laundry tickets or slips amounting to twenty-one dollars and thirty-four cents and offered to go out and collect these tickets; that the general manager refused to look at these tickets and ordered him to immediately pay to the bookkeeper the amount of the alleged shortage; that he was unable to pay the amount; that Mr. Buchanan refused to give him time to collect the unpaid tickets, but at once discharged him and, informed him that he would have him arrested on a. charge of embezzlement; that about an hour later he was arrested and was charged in the police court with embezzlement; that Mr. Buchanan and the bookkeeper of the laundry company appeared in the police court and testified against him; but that after a full hearing of the matter1 he was discharged by the police justice.

There was some testimony tending to show that the appellant’s discharge in the police court was the result of a compromise and amicable adjustment of the matter, but as to this the testimony is likewise conflicting.

“Ill ail action for malicious prosecution, . . . what constitutes probable cause, or whether there was pr'obable cause for the prosecution, is generally a mixed question of law and fact; but if the facts are undisputed, it then becomes a question of law to be determined by the court.” McNully v. Walker, 64 Miss. 198, 1 So. 55. But where the evidence is conflicting as to the existence of probable cause and facts from which the inference of malice may reasonably be drawn, it is the province of the jury to pass upon this conflicting evidence. We think there was testimony for this plaintiff which, if true, would support a,finding of want of probable cause, and from which the inference of malice might be drawn, and, consequently, that the cause should have been submitted to the jury under proper instructions.

Reversed, and remcvnded.