Freeland v. Southern Ry. , 70 S.C. 427 ( 1905 )

February 11, 1905. The opinion of the Court was delivered by The plaintiff, A.P. Freeland, alleged as his cause of action that the defendant, Southern Railway Company, had, with the malicious intent to injure him, and without probable cause, instituted a prosecution against him on the charge that he had bought railroad brass stolen from the Southern Railway Company, knowing it to be stolen, and that on this charge he was tried and acquitted. At the close of the evidence offered on behalf of plaintiff, a motion for nonsuit was made and refused. The verdict was for the defendant. Plaintiff moved for a new trial on the ground that the Circuit Judge had erred in failing to charge a number of propositions of law, which were set forth at length, and in charging, "In actions for malicious prosecution, the plaintiff is required to show express malice on defendant's part — that is, an intent to injure the plaintiff." The motion was refused.

We consider first the appeal from the order refusing a new trial. Inasmuch as the Circuit Judge made a charge covering the general law applicable to the case, and the plaintiff did not request him to charge any of the propositions of law submitted in his motion for a new trial, it is obvious this Court could not grant a new trial because of the Court's failure to submit to the jury specific propositions which it had no means of knowing the plaintiff wished submitted.

It is settled in this State that in actions for malicious prosecution it is necessary to show express malice — that is, intent to injure the plaintiff. Frierson v. Hewitt, 2 Hill, 499; Willis v. Knox, 5 S.C. 476. It is true, inHogg v. Pinckney, 16 S.C. 398, the expression of Judge O'Neall in Frierson v. Hewitt, on the subject, was said to be a mere obiter dictum; but the authority ofWillis v. Knox, supra, was recognized in Hogg v. Pinckney, and in distinguishing actions for malicious prosecution from those for malicious arrest under bail process, the reason for the rule above stated was discussed. The term express malice used in this connection means malice towards the particular person who was prosecuted, as distinguished from that malice which the law implies from an act done without legal excuse, which he who does it well knows will in all probability produce injury to some human being, though express ill-will to the person injured may be actually disproved.

All the other exceptions charge error in the admission of testimony tending to prove the theft of brass and other articles from the shop and cars of the defendant like those found in a box shipped by plaintiff; the plaintiff's position being that "this testimony tended to establish a special defense of which the plaintiff was not advised by the answer and is not relevant to the issue." When the plaintiff alleged there was no probable cause for the prosecution and defendant denied this allegation, one of the vital issues was made up. The defendant undertook to show want of probable cause by testifying that the brass alleged to have been stolen and other articles used by railroads found in his possession, had been purchased by him from the agents of the railroad company. It is quite clear that evidence tending to prove that these articles and articles like them had not been sold, but had been stolen from defendant, was relevant to the issue of probable cause.

The exceptions of the plaintiff are overruled.

As the verdict was for defendant, it is unnecessary to consider whether the Circuit Judge erred in refusing the motion for a nonsuit.

The judgment of this Court is, that the judgment of the Circuit Court be affirmed.