Brooks v. Super Service, Inc. , 183 Miss. 833 ( 1938 )

ON SUGGESTION OF ERROR. As will appear from our former judgment reversing the judgment appealed from reported in 183 So. 484: "This is an action for malicious prosecution and is an appeal from a judgment sustaining a demurrer to the declaration and dismissing the plaintiff's cause of action." We there said that, "The only question presented is whether the prosecution complained of had terminated in the plaintiff's favor," and held that it had so terminated.

The appellee now calls our attention to another question presented by the demurrer which is whether or not the declaration discloses that the appellee had probable cause for instituting the prosecution. If the declaration does disclose probable cause for instituting the prosecution, this action, of course, will not lie. The existence of probable cause, the appellee says, is disclosed in the declaration by its allegation that the appellant was convicted in the court of the justice of the peace, in which court the prosecution was begun.

The declaration does so allege, as will appear from our former opinion, and the judgment of conviction has not been set aside or reversed. What occurred was that the appellant appealed from this conviction to the circuit court, and the prosecution against him was there dismissed. A judgment of conviction whether reversed or not has the same evidential value on the question of probable cause for instituting the prosecution. There are three lines of cases dealing with the effect of a judgment of conviction on the question of probable cause for instituting the prosecution.

(1) It is conclusive evidence thereof. (2) It is conclusive evidence thereof unless it was obtained by fraud, perjury, or other corrupt means. This is the rule of the majority of the cases and is that adopted in 3 Rest. Tort, Section 667. (3) It is only prima facie evidence thereof and may be rebutted by any competent evidence which clearly overcomes the presumption that arises from the fact of the defendant's conviction. The first of this line of cases we unhesitatingly decline to follow, but it will not be necessary for us to here determine with which of the other two lines of cases we will align ourselves for the case presented by the declaration will come within both. If it be said, as to which we express no opinion, that if this court aligns itself with the second of these two lines of decision, a declaration setting forth a conviction in the prosecution complained of must allege that the conviction was procured by fraud, perjury, or other corrupt means, the declaration here so alleges sufficiently to withstand a demurrer.

The defendants to the declaration are the Super Service, Inc., and Neilson, alleged to be its agent and the one by whom the affidavit on which the prosecution was begun was made. It alleges that the prosecution was instituted for the purpose of collecting a debt claimed to be due the Super Service, Inc., by the appellant, and that the affidavit on which it was begun charged the appellant "with having theretofore on or about the ____ day of February, 1937, procured from the said defendant a rental battery which he was bound, or agreed, to return within a period of fourteen days, said criminal prosecution charging this plaintiff with the crime defined under sections 1142 and 1143 of the Code of 1930." The declaration further alleges: "that the said prosecution by said defendant was without foundation in fact or law; that the said defendants well knew at the time of the institution of said criminal prosecution that the plaintiff had never at any time in his whole life contracted or assumed any obligation, either expressed or implied, unto the defendants for the return of any rental battery; that he had never received any rental battery from the said defendants, or either of them, nor had he ever requested any such battery, nor authorized any person on his behalf to receive any such battery from the said defendants." If this last allegation is true, then perjury was committed in the making of the affidavit by which the prosecution complained of was begun, and the judgment of conviction was obtained by evidence which the appellants knew was false.

The suggestion of error will be overruled.