383 So. 2d 184 | Ala. Civ. App. | 1980
Plaintiff recovered verdict and judgment for $8,000 in an action for malicious prosecution. Defendant appeals charging error in denial of his motions for directed verdict, judgment notwithstanding the verdict and for new trial.
Plaintiff for several months was a supervising employee of a partnership called Happy Home Foamers. Defendant was one of the partners. Plaintiff, with the consent of one or both partners, stored various items on his property. Viewed most favorably to the plaintiff, there was evidence that a large number of bags of cellulose were stored in the home of plaintiff. Due to lack of business, plaintiff terminated his employment. Defendant thereafter came with other employees to the home of plaintiff and demanded the cellulose. Plaintiff refused to allow him to take it, stating that he would keep it until he was paid wages and commissions owed him by the partnership. After argument, discussion of settlement and consultation with police officers who were called, defendant left without the cellulose and other items. Defendant in the following few days sought aid for recovering his property by talking with police officers, district attorney and a municipal judge. A warrant was obtained for plaintiff's arrest from the District Court of Mobile County. The municipal judge became and continues as defendant's counsel. The warrant charged embezzlement of the items allegedly in possession of plaintiff. Plaintiff was arrested, jailed and subsequently made bond. At the later call of the case for trial, an agreement was made that the items would be given to defendant and a nolle pros was entered. Plaintiff subsequently brought this action.
Defendant's contentions on appeal are that the evidence conclusively established the defenses of probable cause and advice of counsel.
One of the elements of an action for malicious prosecution which a plaintiff must establish by the evidence is that of absence of probable cause. Birwood Paper Co. v. Damsky,
The material facts of the dispute between plaintiff and defendant were in conflict. It therefore became a jury question as to whether defendant, from the facts known to him, had or had not probable cause to believe plaintiff guilty of the offense of embezzlement. Hanson v. Couch,
It is the law of this state that advice of counsel, honestly sought and acted on in good faith, supplies an indispensable element of probable cause and is a complete defense to an action for malicious prosecution. Broussard v. Brown,
There being a factual dispute bearing on both the lack of probable cause and the defense of advice of counsel, we find that the trial court did not err in refusing to grant defendant's motions for directed verdict and for judgment notwithstanding the verdict. When rendered, jury verdicts are presumed to be correct and this presumption is strengthened by the trial court's refusal to grant a motion for new trial.Shores v. Terry,
Defendant contends the trial court erred in taking his defense of truth from the jury. It does not appear from the record that defendant made any objection to the court's charge to the jury or that he otherwise raised this point before the trial court. This court will not reverse on the basis of an issue not raised and ruled on below. McGugin v. McGugin,
Defendant urges improper remarks by plaintiff's counsel in closing argument as his final ground for reversal. The challenged remark is as follows:
*187Mr. Bedsole: He's filed other civil lawsuits. Mr. Saliba told you that. He knows how to file 'em. That's what he could have done here. But what did he choose to do? He chose to go down and make up a bunch of stories to the Judge and to the District Attorney.
The defendant contends that this argument is without basis in the evidence. In the matter of an attorney's argument to the jury, much must be left to the enlightened judgment of the trial court, with presumptions in favor of its rulings. Dendyv. Eagle Motor Lines, Inc.,
The judgment below is affirmed.
AFFIRMED.
BRADLEY and HOLMES, JJ., concur.