Moneyweight Scale Co. v. McCormick

¹⁷⁵ Thomas, J., delivered the opinion of the Court. This is an action for malicious prosecution and for false imprisonment (which was tried as for malicious prosecution), by the appellee, Kelson E. McCormick, against the appellant, the Moneyweight Scale Company, a corporation of the State of Illinois, and Howard C. Shimer, James O. Win-stead and 1. T. Blackburn. The trial below resulted in a verdict and judgment in favor of the appellee against the appellant for $425.00, and a verdict and judgment in favor of the other defendants, and it is from the judgment against the appellant that this appeal is taken.

The record contains ten bills of exception, the first nine of which are to the rulings of the Court on the evidence, and the tenth to the action of the Court on the prayers. As the defendants by their first prayer, which was rejected, asked the Court to instruct the jury that the plaintiff had offered no evidence legally sufficient to entitle him to recover, it will be necessary to examine the evidence at some length. It appears from the testimony of the appellee that the appellant was engaged in the business of selling scales, and that he was employed by the appellant from Eebruary, 1902, to February, 1906, as its “salesman and collector” in Baltimore City. That after the fire in Baltimore, in 1904, business was very dull, and that in order to get business it was necessary for him to have a team to take around his samples and to deliver the goods, and that he used some of the collections he had made, and which had not been turned into the appellant company, for the purpose of securing the team.

That in the latter part of 1904 he met Mr. Winstead, General Manager of the appellant for the Eastern States, including Baltimore City, whose office was in Philadelphia, and Mr. Klein, one of the officials of the appellant, at the Hotel Shirley, in Baltimore, and that Mr. Winstead wanted him to go to Philadelphia and act as collector for the company there. That in April, 1905, Mr. Winstead again asked him to go to Philadelphia, and that the appellee then told him that he had used some of the collections for the purpose of securing the team, ¹⁷⁶ and that he wanted to straighten up before he made any changes; and that that was the reason he had not consented to go to Philadelphia when he first asked him to go; that Mr. Winstead then asked him how much he had so used, and that he told him, and that Mr. Winstead then asked him how his collections were, and he told him they were fairly good, and that Mr. Winstead then told him to use the collections he had to pay up those he had not turned in to the appellant, and to go ahead and “use the best efforts” he could to get business and that he would see him through, and that he did just as Mr. Winstead told him to do. That when Mr. Winstead was in Baltimore, he and the appellee used the team together in making. sales and collections for the appellant. That in October, 1905, Mr. Winstead wrote him, expressing the hope that he would continue to get “nice business,” as “I am desirous that you have the success that you so much deserve,” and, on October 23, 1905, wrote him again, urging him to come to Philadelphia, and stating that there was no business in Baltimore, and that the sooner he got to Philadelphia the better it would be for him, and requesting him to box up the scales he had in his possession and ship them to Philadelphia.

That he went to Philadelphia to work for the appellant some time in November, 1905, and that shortly after he got there, about the first of December, he had a talk with Mr. Winstead and Mr. Blackburn, a representative of the appellant, in regard to the amounts he had collected and used, and gave them an account of it; that they wanted him to settle the amount at once, but he told them that he “was not in a position to settle just then;” that Mr. Blackburn wanted him to get his brother to fix it up for him, and that he told him that he did not care to do that; that he,- appellee, had some money in the hands of Mr. Winstead, and that he would like to have some time to pay what he had used, and that they finally agreed to Jet him keep on as he had been, “and pay it along out of his commissions.” That a short time after this conversation, on December 13th, he was injured by a trolley car, and was laid ¹⁷⁷ up for about ten weeks, and that after he got out again Mr. Winstead advised him to go back to Baltimore. That he returned to Baltimore, and after he had been working there about a week Mr. Winstead and the appellant refused to furnish him with any more samples. After the appellee was discharged, in February, 1906, the appellant wrote appellee’s brother that after appellant had discovered the shortage of the appellee the appellant had agreed that the appellee could liquidate it in the way of commissions, but that appellee had failed to do this, and urging his brother to take some steps towards having it paid. To this letter appellee’s brother replied that he believed the appellee to be honest, and that if the appellant would allow the appellee to continue his work he was certain he would pay every dollar he owed; that he had spoken to the appellee about the matter, and that he said that while he owed the appellant about $170.00, he had an open account against the appellant, and requested the appellant to send him an itemized account, in order that he could know how the appellee stood.

On April 4, 1906, appellant wrote appellee’s brother in reply that they would be glad to accommodate him with an itemized statement of appellee’s account, but that that would involve a large amount of work, and that they could not just then furnish it. That they were very glad to quote the present balance, so that he could know the general shape his account was in. That their commission account with him to that date showed him indebted to the appellant to the amount of $271.40, against which there were credits of a conditional nature in favor of the appellee, in the form of prospective commissions, to the amount of $342.00, and that in addition to the $342.00, there was a further sum of $62.50 in possible commissions, but that the several amounts making up the $62.50 were in dispute, and the payment of the same quite doubtful. In this letter the appellant requested appellee’s brother to notify the appellee that the appellant had a perfect right to resort to extreme measures if the matter was not adjusted, and that he could not expect the appellant to withhold such action much longer.

On ¹⁷⁸ the 11th of April, 1906, the appellant wrote the appellee as follows: “This is to give you notice that on Saturday, April 21st, we are going to forward our claim against you to our Baltimore attorney and direct him to institute immediate action. * * * We shall not engage in this action in any vindictive or revengeful spirit, hut merely for the purpose of enforcing a proper adjustment, etc.” Appellee further testified that at the time he was discharged he owed the appellant about $168.00, and that in addition to his commissions on sales made by him, which the appellant had refused to render him an account of, he was entitled to commissions on the sales of twenty-two scales, made by him and Mr. Winstead in Baltimore with the understanding that they would divide commissions. Some time after the appellant’s letter to the appellee, of April 11th, appellee received a note from Mr. Shimer, counsel for the appellant, asking him to call at his office on business of importance, and appellee states that when he went to Mr. Shimer’s office Mr. Shimer told him that he had appellant’s account against him for $300.00, which he wanted him to settle at once. That he toldMr. Shimer that it was not $300.00, hut $168.00, and that he was ready and willing to settle with the appellant if the appellant would render'him a statement, and it appeared frotíi the statement that he owed the appellant anything; that Mr. Shimer said to him that Mr. Blackburn would he in Baltimore in a few days and if it was not settled before he came he would make trouble for him, and that when he asked him what he meant by trouble, Mr. Shimer said that he would have him arrested.

That appellee and his counsel later on had another interview with Mr. Shimer, when Mr. Winstead and Mr. Blackburn were present, and that at that interview he again demanded a statement from the appellant of his commissions, which they refused to give him. The testimony óf Mr. Winstead, Mr. Blackburn and Mr. Shimer is to the effect that the appellee admitted to Mr. Win-stead in May, 1905, that he was short in his accounts to the extent of about $100.00; that he was at that time in great dis ¹⁷⁹ tress of mind for fear that the appellant would find it out; that Mr. Winstead, after thinking the matter over, agreed to let him continue his work of selling and collecting for the appellant, and to work with him; that Mr. Winstead subsequently found that appellee was short about $300.00, instead of $100.00, and that he and Mr. Blackburn had a talk with the appellee in Philadelphia, in which conversation appellee was told that his shortage amounted to $300.00; that the appellee disputed tho correctness of that amount, and signed a statement admitting items which he had collected amounting to $169.00, and also another statement of items amounting to $91.50, which he claimed to have accounted for to the former general manager of the appellant. That Mr. Winstead consulted Mr. Shimer, counsel for the appellant, in i*egard to the claim against the appellee, and that afterwards he, Mr. Blackburn, and Mr. Shimer went to the State’s Attorney’s office in Baltimore City, and consulted Mr. O’Dunne, and that, acting upon the advice of counsel and of the State’s Attorney, the prosecution was begun by direction of the appellant; that in consulting Mr. O’Dunne they did not tell him that the appellee claimed that the appellant owed him commissions and had refused to render him a statement. The agreement of counsel, made a part of the record, shows that the appellee was arrested on the 29th of September, 1906, on a warrant sworn out by Mr. Shimer, “acting by express authority” of the appellant, “charging him with violating Article 27, Sec. 103, of the Code of Public General Laws of the State of Maryland, and with the embezzlement of $169.00, current money, belonging to the Moneyweight Scale Company;” that the appellee on the testimony of Mr. Shimer, acting for the appellant, was committed to the Baltimore City Jail for the action of the Grand Jury for Baltimore City, and upon the testimony of said Shimer was indicted by the Grand Jury, and tried in the Criminal Court of Baltimore City upon said charge; that the appellant “aided and assisted in the prosecution of said trial,” which resulted in the acquittal of the appellee. ¹⁸⁰ To entitle the plaintiff.to recover in an action for malicious prosecution, he must show that he was prosecuted by the defendant for an alleged criminal offense; that the charge was false and malicious, and without probable cause, and that the prosecution was finally determined by an abandonment or a dismissal of the charge, or the acquittal of the accused.

His failure to establish any one of these essential elements will be fatal to his right of recovery. The falsity of the charge may be shown by the trial and acquittal'of the plaintiff, but such evidence is not- conclusive, and the defendant may show that, notwithstanding his acquittal, the plaintiff is guilty of the offense for which he was prosecuted. The malice which is required to be shown is the wrongful motive that prompted the prosecution, and may be established by proof of any motive other than that of bringing a guilty party to justice. While malice may be presumed from the want of probable cause, such presumption may be rebutted by proof of the circumstances under which the defendant acted, for instance, that he consulted counsel, and that, after a full and frank disclosure of all facts known to him, or which, by the exercise of reasonable diligence, he could have ascertained, he in good faith, and in the honest belief that the accusation was well founded, acted upon the advice of his