92 W. Va. 340 | W. Va. | 1922
Plaintiff brought his action in the circuit court of McDowell County against defendants, I. Katzen and S. M. Iafolla, charging that they had maliciously and without probable cause procured a warrant for and caused plaintiff’s arrest on the charge of having sold certain beverages containing more alcohol than the law permitted. The action was dismissed as to Iafolla. Upon the trial, the jury returned a verdict of $1000 against Katzen. On his motion, the court set aside the verdict and granted him a new trial. Plaintiff obtained a writ of error.
"Was the court justified in setting aside the verdict?
Plaintiff was a wholesale dealer of -soft drinks in the city of Welch. Defendants were partners engaged in the same business. An important branch of the business in that vicinity was the distribution of various kinds of beverages of the “near-beer” variety. About May 4, 1920, plaintiff received from Chicago a carload shipment of bottled drinks labelled “Savoy Special.” While engaged in unloading this shipment preparatory to delivery in trucks to his store and to
His arrest, plaintiff avers, was instigated by the complaints and inducements of the defendant Katzen. As will appear, this averment was strongly supported by the proof. On the day preceding the arrest, one, Ellis Wheby, a retailer in soft drinks, purchased two cases of the “Savoy Special” from plaintiff and it was delivered to him at his store. On examining the labels on the bottles, Wheby at once noticed certain words and figures which, he read “Two and three-quarters per cent of alcohol by volume. ’ ’ He immediately wrote plaintiff that he was afraid to handle a beverage of that character and requested that he be allowed to return the two cases. The next morning, having received no reply, he took the matter up with the defendant Katzen, with the view, as he claims, of obtaining advice as to what to do. Katzen showed immediate interest and asked permission to examine and sample the drink. Having satisfied himself both from examination of'the labels and the taste of the drink, a few bottles of which made him dizzy, that Wheby’s fears were indeed well founded, Katzen decided to bring the' matter to the attention of the authorities. Although Katzen had at one time been a prohibition officer, he was quite frank in admitting that his actions in this affair were based solely on business motives; that as a dealer in soft drinks, it was his business to take care that no competitor introduced real beer into the field. His first step was to carry a bottle to the prosecuting attorney, G. L. Counts. Counts read the label, but inasmuch as it was his policy to institute proceedings only
Katzen came upon Collins in the street, and suggested action in the matter. Collins desired the advice of the prosecuting attorney, and upon a second meeting with Katzen they went together to the office of Counts. Collins is not positive that Katzen suggested a warrant to him, but his testimony leaves no doubt as to Katzen’s insistance upon action. After consultation with Counts, and with his approval, Collins and Katzen went to the office of the Mayor, before whom the warrant was issued upon sworn complaint of Collins, Nat,-zen not desiring to “have anything to do with it,” though he apparently took a leading part in the conversation with the Mayor.
The immediate and natural result of this arrest was the refusal on the part of plaintiff’s customers to purchase further quantities of the beverage in question, and as it was upon the sale of near-beer that plaintiff’s business depended, he was, if he is to be credited, practically without means of livelihood until his ultimate release from the charges against him, a period of sixty days. This discharge came about in the manner following:
A short time after the arrest, a representative of the manufacturer of the “Savoy Special” came to Welch, explained to the prosecuting attorney the nature of the beverage, and for the first time, so far as the record shows, that official and the other parties interested were advised as to the true purport of the labels on the bottles. As heretofore shown, up to this time, defendant Katzen, Prosecuting Attorney Counts, Mayor Summers, prohibition officer Collins and the witness Wheby had all been led to believe and did believe, either by examination of the bottles, or the representations of others, that the labels described the contents of the bottles as containing “Two and three-quarters per cent alcohol by volume. ’ ’ Plaintiff himself was of the same opinion and had so
Bearing in mind the facts as outlined, was the court justified in setting aside the verdict for the plaintiff? The authorities have defined with unusual clarity thje circumstances prerequisite to a lawful verdict in an action for malicious prosecution. Quoting from the case of Vinal v. Core, 18 W. Va. 1, these circumstances are four in number:
“First. That the prosecution alleged in the declaration had been set on foot and conducted to its termination in the final discharge of the plaintiff by the justice.
Second. That it was- instituted and procured by the cooperation of the defendants.
Third. That it was without probable cause.
Fourth. That it was malicious.”
Counsel for defendant insist that the last three of these elements have not been proved in this case. Omitting a considerable part of the detailed argument, it is urged that the plaintiff’s arrest is traceable, not to the activities of Katzen,
Defendant asserts that the uncontradicted evidence in this case showed probable cause for plaintiff’s arrest,- and that under point 1 of the syllabus of Bailey v. Gollehon, supra, the court was justified in setting aside the verdict. That syllabus is as follows:
"If, in an action for malicious prosecution, sufficient facts to constitute probable cause for institution of the criminal proceedings are clearly established by admissions or uncontradieted evidence or both, it is th,e province of the court to deny right of recovery by direction of a verdict for the defendant or the setting aside of a verdict for the plaintiff.” .
Plaintiff, relying, we believe, upon an erroneous theory that the cause must be actual rather than probable denies the ap
Applying the above definition to the facts of the present case, we have not the least doubt but that there was sufficient evidence of plaintiff’s guilt to justify the institution of his prosecution before the mayor on the charge of unlawfully selling intoxicating liquors. The letters and figures on the labels were intended to mislead and to deceive. They did deceive, not only the prosecuting witnesses, including the defendant, but the prosecuting attorney, an official experienced in the detection of crime, and even the plaintiff himself, the ■ purchaser of the beverage. If defendant’s statements be true, the contents of the bottles were not less deceptive. Though it is evident that at least the plaintiff and the, defendant were much interested in the outcome of the prosecution, no-one, so far as the record shows, became aware of the true situation until informed by the representative of the manufacturer of the Savoy Special. All the men concerned were men of reasonable minds, as contemplated by the test laid down by
Plaintiff having failed as a matter of law to establish want of probable cause for his arrest, one of the four essential elements of an action for malicious prosecution, is lacking, and we must affirm the action of the circuit court in setting aside a verdict in his favor.
Affirmed.