Summary
In Grenada Bank v. Petty, 174 Miss. 415, 164 So. 316, the question presented was where the cause of action accrues in a suit for malicious prosecution. It was held that such cause accrued as soon as the last requisite element, the acquittal of plaintiff, came into existence.
Summary of this case from Forman v. Miss. Publishers Corp.Opinion
No. 31919.
December 2, 1935.
1. ABATEMENT AND REVIVAL.
Court may grant defendant permission to withdraw his plea to merits and plead in abatement.
2. PLEADING. Admitting jurisdiction of court by filing plea in abatement does not preclude party from pleading absence of venue.
"Jurisdiction" connotes power to decide case on merits, while "venue" connotes locality, the place where suit should be heard.
3. MALICIOUS PROSECUTION.
Termination of prosecution complained of in favor of defendant is material element of cause of action for malicious prosecution, without which no cause of action therefor comes into existence.
4. CORPORATIONS. Under statute fixing venue of actions against domestic corporations in county where domiciled or in county where cause of action accrued, venue of action against domestic corporation for malicious prosecution held in county where prosecution complained of terminated in defendant's favor, since cause of action could not come into existence until such termination ( Code 1930, section 495).
"Cause of action" may refer to right to institute and carry on action or to facts giving rise to action. "Accrue" means to come into existence as an enforceable claim; to vest as a right. "Occur" is without technical import and means to meet one's eye; to be found or met with; to present itself; to appear; hence, to befall in due course; to happen. "Or" may suggest alternative, but it may also indicate appositional relation of thought, i.e., it may separate words or phrases the second of which is equivalent or is explanatory of first; it may be used to express alternative of terms, definitions, or explanations of same thing in different words, introducing synonym for preceding term; and in this sense may be construed as having same meaning as being, otherwise, otherwise called, that is, that is to say, to-wit.
APPEAL from the circuit court of Sunflower county; HON.W.H. COX, Judge.
Cooper Thomas, of Indianola, Watkins Eager, of Jackson, and R.H. Nason, of Belzoni, for appellant.
The Grenada bank is a domestic corporation, chartered under the laws of Mississippi and domiciled in Grenada county. Jurisdiction of this defendant cannot be justified in Sunflower county because the Grenada bank had agents in Sunflower county or had a branch in Sunflower county.
Section 495, Code of 1930; 14 C.J., sec. 416, page 338.
The only other way in which the Sunflower county court could have jurisdiction of the defendant is to show that the cause of action occurred or accrued in that county. The question therefore recurs as to whether the cause of action occurred in Sunflower county.
The declaration has no possible element of false arrest or false imprisonment. It is purely and simply a charge of malicious prosecution.
We contend that the venue lies in Humphreys county because the charge was there made, the subsequent trial was there held and the fact that the arrest occurred in Sunflower county did not permit a malicious prosecution case to be tried there, we contending that the cause of action accrued in Humphreys county.
Hubbard v. Lord, 59 Tex. 384; Blalock v. Randall, 76 Ill. 224; Rhodes v. King, 52 Ala. 272; Yates v. Lansing, 9 Johns 395; Benham v. Sterns, 33 N.H. 247; Wills v. Whittier, 45 Me. 544; Conpol v. Ward, 106 Mass. 289; Johnson v. Maxon, 23 Mich. 129; Waterman on Trespass, sec. 293, pages 346, 347 and 348.
We have abolished all common-law forms of action, but the principles upon which the distinctions rest are as applicable to our system as to any other. Where the arrest is made under lawful process, we must proceed alone against the party who sued it out, and must allege malice and want of probable cause.
Leach v. Stone, 264 S.W. 620; Hubbard v. Lord, 59 Tex. 384; Raleigh v. Cook, 60 Tex. 438; Hilliard v. Wilson, 65 Tex. 286; 277 S.W. 403; 286 S.W. 614; 18 S.W.2d 857; 34 S.W.2d 314; 55 S.W.2d 247; 62 S.W.2d 661; Smith v. Rogers, 34 S.W.2d 312; State ex rel. News Publishing Co. v. Park, 165 N.W. 289; Goodwin Preserving Co. v. Davis, 258 S.W. 97; Kalberg v. Greiner, 8 P.2d 799; Age-Herald Publishing Co. v. Huddleston, 206 Ala. 40, 92 So. 193, 37 A.L.R. 898.
An arrest is not essential to the cause of action of malicious prosecution.
Ballard v. Cash, 230 S.W. 48; 155 Ky. 254; 50 L.R.A. (N.S.) 392; 168 Ky. 301; 181 S.W. 1108; Coffey v. Myers, 84 Ind. 105; Hammill v. Mack International Motor Truck, 141 A. 775; Stewart v. First National Bank Trust Co., 18 P.2d 801; 18 R.C.L., sec. 9, page 20; 38 C.J., Malicious Prosecution, sections 9 and 14, pages 388 and 390; Halberstadt v. N.Y. Life Ins. Co., 21 L.R.A. 293, 86 N.E. 801; Holmes v. Johnson, 44 N.C. 44; Ruston v. Biddle, 43 Ind. 513; Masonite Corporation v. Burnham, 164 Miss. 840, 146 So. 292.
It is above and beyond the function and province of a bank to prosecute for violation of the criminal laws. No employee or official of such bank has the inherent power to prosecute criminally. It is beyond the scope of the authority of any subordinate employee to begin such prosecution, regardless of motives or intent.
Fisher v. Westmoreland, 101 Miss. 180, 157 So. 563; Russell v. Palatine Ins. Co., 106 Miss. 290, 63 So. 644; Davis v. Price, 133 Miss. 236, 97 So. 557; Young v. Price Mercantile Co., 148 So. 643; Kraft v. Magnolia Stores Co., 161 Miss. 756, 138 So. 405; Lamm v. Charles Stores Co., 77 A.L.R. 923; Baltimore, C. A.R. Co. v. Ennalls, 69 A. 638, 16 L.R.A. (N.S.) 1100; Carter v. Howe Mach. Co., 51 Md. 290, 34 Am. Rep. 311; Beiswanger v. American Bonding T. Co., 98 Md. 287, 57 A. 202; Daniel v. Atlantic Coast Line R. Co., 136 N.C. 517, 67 L.R.A. 455, 48 S.E. 816; 7 C.J., page 478; Chapter 85, Code of 1930; Chapter 146, Laws of 1934; Muller v. Hillenbrand, 8 A.L.R. 1455; 14a C.J. 349, par. 2211, and note 44; Reconstruction Finance Corporation v. Rawlings, 76 F.2d 566; Awotin v. Atlas Exchange National Bank, 79 L.Ed. 772.
Appellant did not waive the lack of jurisdiction.
Even if the original declaration had not been abandoned and no amended declaration had been filed, there was no waiver of jurisdiction when the court ordered the withdrawal of the plea and permitted the filing of the plea in abatement. This left the matter of pleading at the time of the filing of the plea in abatement as if no plea had ever been filed. Under no possible theory was the plaintiff prejudiced thereby in any of his rights, remedies or defenses, nor was there any delay in the trial of the case.
Kern v. Huidekoper, 26 L.Ed. 354; 1 C.J., Abatement and Revival, page 267, sec. 590-J and 593; Shaw v. Brown, 42 Miss. 309; Fireman's Fund Ins. Co. v. Cole, 152 So. 872; 49 C.J., Pleading, page 663, sec. 941; 67 C.J., page 302, sec. 6, and page 308, sec. 9; Batson Hatten Lbr. Co. v. McDowell, 131 So. 880; McNeely v. Y. M.V.R.R. Co., 119 Miss. 897.
Allen Allen, of Indianola, for appellee.
It is true that criminal prosecution is not one of the purposes for which a bank is organized, and that the prosecution of cases is left as the duty of those charged with the enforcement of criminal law. It is also true that no corporation, banking or otherwise, has been delegated the power to prosecute people; yet, a railroad company, an insurance company, and all other corporations in the state, when they do prosecute a person wrongfully, become liable for malicious prosecution, and where absence of probable cause and ulterior motives that amount in law to malice are present in the prosecution, all corporations in Mississippi, whether a banking corporation or not, becomes liable for actual and punitory damages growing out of its wrongful conduct in so doing. It cannot be said that because a corporation (which can act only through its agents) exceeds its chartered power and thereby does an injury to an individual, that its acts in so doing are beyond the pales of law to punish.
7 C.J., page 561, sec. 167; 9 A.L.R. 351; Guilleaume v. Rowe, 94 N.Y. 268, 46 Am. Rep. 141, 63 How. Pr. 175; Sleight v. Leavenworth, 5 Duer 122; Gibson v. Holmes, 78 Vt. 110, 4 L.R.A. (N.S.) 451, 62 A. 11; Collett v. Foster, 2 Hurlst. N. 356, 157 Eng. Rep. 147, 26 L.J. Exch. (N.S.) 412, 5 Week. Rep. 790; Brooks v. Hodgkinson, 4 Hurlst. N. 712, 157 Eng. Rep. 1021, 29 L.J. Exch. (N.S.) 93, 7 Week. Rep. 735; Barker v. Braham, 2 W. Bl. 866, 96 Eng. Rep. 510, 3 Wils. 368, 95 Eng. Rep. 1104; Wilson v. Brecker, 11 U.C.C.P. 268; Ackroyd v. Ackroyd, 3 Daly 38; Kelly v. Newark Shoe Stores Co., 190 N.C. 406, 130 S.E. 32; Takahashi v. Hecht Co., 50 F.2d 326; Shields v. Patterson, 97 Pa. Super. 398; Rivers v. Yazoo M.V.R. Co., 90 Miss. 196, 43 So. 471, 473.
It therefore follows that appellant bank is liable for the criminal prosecution complained of in this case.
Section 3380, Mississippi Code of 1930, provides that there shall be no reversal for want of jurisdiction.
The appellant waived venue.
Griffith Chancery Practice, page 154, sec. 156; 67 C.J., page 94, sec. 150; Indianola Cotton Oil Co. v. Crowley, 83 So. 409; 67 C.J., page 313, sec. 14; Franklin Fire Ins. Co. v. Brewer, 159 So. 545.
Appellant waived the venue when it filed its general issue plea. This venue then became a property right of the appellee which was vested in him under the law and which neither the appellant nor the courts could take away from the appellee without his consent.
Irrespective of waiver, Sunflower county had venue.
The cause of action sued on by appellee grows out of a progressive wrong commencing with the action of appellant in making an affidavit against appellee in Humphreys county, Mississippi, alleging that the appellee had unlawfully and wrongfully removed mortgaged property out of Humphreys county and into Sunflower county, etc., contemplating at the time and knowing that on this affidavit a warrant would issue as a result of said affidavit directed to the sheriff of Sunflower county, Mississippi, where the appellee lived, for the arrest of appellee. The injury sustained by appellee was to his reputation and good name among his neighbors and friends among whom he lived in Sunflower county, Mississippi; appellee's injury was sustained therefore in Sunflower county, Mississippi, and it was there where the cause of action accrued to him and his injury occurred.
Peaslee Gaulbert Co. v. McMath, Ann. Cas. 1913E, 392, 39 L.R.A. (N.S.) 465; A.G.S.R. Co. v. Carrol, 11 So. 803; Chicago, etc., R. Co. v. Doyle, 60 Miss. 977; Smith v. So. Ry. Co., 26 L.R.A. (N.S.) 927; Tingley v. Times Mirros Co., 88 P. 918; 37 A.L.R. 910; Vicknair v. Dailey States Publishing Co., 81 So. 324; Okla. Pub. Co. v. Kendall, 221 P. 762; Louisville Press Co. v. Tennelly, 49 S.W. 15; Belo v. Wren, 63 Tex. 686, 37 A.L.R. 912; Commonwealth v. Blanding, 12 Am. Dec. 214; State v. Priver, 49 L.R.A. (N.S.) 914, Ann. Cas. 1915A, 695; 19 Am. Eng. Encyc. of Law (2 Ed.) 193; In re Estate of Hamlin, 126 Am. St. Rep. 938.
Appellee had his option to bring the suit either into Sunflower county, Mississippi, Humphreys county or Grenada county, Mississippi.
Bulwer's case, 7 Coke Ia. 2a, 77 Eng. Rep. 411.
In all cases where the action is founded upon two things done in several counties, and both are material or traversable, and the one without the other doth not maintain the action, there the plaintiff may choose to bring his action in which of the counties he will.
Smith v. Southern Ry. Co., 26 L.R.A. (N.S.) 927; Sutton v. Clark, 1 Marsh 429; London v. Cole, 7 T.R. 583; Scotto v. Brest, 2 Taunt. 252, 100 Eng. Rep. 129; Chitty's Pleading 299; Railroad Co. v. Anders, 40 So. 163; 67 C.J., pages 45 and 46, sections 56 and 58, and page 48, sec. 60, and page 84, sec. 134, and page 95, sec. 152; Morrimac Veneer Co. v. McCalip, 92 So. 817; McPherson, Sheriff, v. Gay, 117 So. 202; Masonite Corp. v. Burnham, 146 So. 292; Sandford v. Dixie Const. Co., 128 So. 887; Bd. of Drainage Com'rs, Bolivar County v. Bd. of Drainage Com'rs, Washington County, 95 So. 75; Carlson v. Rensink, 3 A.L.R. 72; 14a C.J., pages 794 and 795, sec. 2883, footnote on page 794, and page 796, sec. 2885; Plummer-Lewis Co. v. Francher, 71 So. 907; Peaslee-Gaulbert Co. v. McMath, 148 Ky. 265, 146 S.W. 770, 39 L.R.A. (N.S.) 465; Archibald v. Miss. T.R. Co., 66 Miss. 424, 6 So. 238; Pointer Fertilizer Co. v. DuPont, 54 Fla. 288, 45 So. 507; Santoro v. Trimble, 63 App. Div. 413; Lawton v. Farrell, Ct. Civ. App. N.Y., Oct. 23, 1917; Mitchell v. Ripy et al., 82 Ky. 516; N.C. v. Lee, 203 N.C. 13, 25.
It is true that there are some authorities to the contrary, but these authorities seem to be influenced by the Texas case of Hubbard v. Lord, 59 Tex. 384, and states that have followed the Texas decision. It will be borne in mind that the common law heretofore in force in Texas was the common law of Spain and that even the common-law of Texas has been expressly abolished by statute. The decisions of the several states do not help us much since the matter of venue is purely statutory and its interpretation must depend upon the peculiar wording of the statutes.
Argued orally by W.H. Watkins and Forrest Cooper, for appellant, and by B.B. Allen, for appellee.
The appellant is a domestic corporation domiciled in Grenada county, but has a branch bank in Humphreys county. An employee of the appellant instituted a criminal prosecution in Humphreys county against the appellee. The appellee was arrested at his residence in Sunflower county. He appeared before the court in Humphreys county, where the cause was tried, resulting in appellee's acquittal. Thereafter, he sued the appellant in Sunflower county for malicious prosecution, charging that the appellant was responsible for the act of its employee in instituting a prosecution against him. The appellant appeared in response to a summons, and filed a plea to the merits of the cause. Thereafter, by permission of the court first had and obtained, it withdrew its plea to the merits, and filed one in abatement to the action, alleging that the venue of the action was not in Sunflower county. Issue was joined thereon, and it was tried by the court without a jury.
The evidence embodied the facts hereinbefore stated, and the court decided the issue against the appellant, declined to dismiss the cause, and proceeded with the trial, which resulted in a verdict and judgment for the appellee.
The first error assigned is the refusal of the court to sustain the plea in abatement and dismiss the cause. The appellee says that the right to file this plea in abatement was waived by the appellant when it filed its plea to the merits. Without pausing to ascertain whether this question was raised in the court below, we will say that while a defendant cannot as a matter of right plead in abatement after pleading to the merits of a cause, the court may, as was here done, confer that right upon him by granting him permission to withdraw his plea to the merits and plead in abatement. No claim is here made, and no fact appears, indicating that the court below abused its discretion in granting this permission. But the appellee also says that the appellant admitted the jurisdiction of the court by filing its plea in abatement, and that it is bound thereby. Assuming, but solely for the purpose of the argument, that this is true, that fact would not bar the appellant from pleading the absence of venue. Batson Hatten Lumber Co. v. McDowell, 159 Miss. 322, 131 So. 880. There is a difference between jurisdiction and venue. "Jurisdiction connotes the power to decide a case on the merits, while venue connotes locality, the place where the suit should be heard." 67 C.J. 11. Cf. Catlett v. Drummond, 113 Miss. 450, 74 So. 323, and Arnett v. Smith (Miss.), 142 So. 478, and Id., 165 Miss. 53, 145 So. 638.
Should the plea in abatement have been sustained? The venue of actions against a domestic corporation is fixed by section 495, Code of 1930, which is, in part, as follows: "Civil actions of which the circuit court has original jurisdiction shall be commenced . . . if the defendant is a domestic corporation, in the county in which said corporation is domiciled, or in the county where the cause of action may occur or accrue except where otherwise provided." No other statutory provision relative thereto has been called to our attention. The question is, did the appellee's cause of action occur or accrue in Sunflower county?
His contention is that an arrest is a material element of a cause of action for malicious prosecution, and therefore his cause of action occurred, or accrued, at least in part, in Sunflower county, where he was arrested. If an arrest is not a material element of a cause of action for malicious prosecution, as some courts hold, then no difficulty would be here presented, for then no part of the appellee's cause of action either occurred or accrued in Sunflower county. It will not be necessary for us to decide this question, for should we hold that an arrest is a material element of a cause of action for malicious prosecution the result, as will hereinafter appear, would be here the same.
The term "cause of action" may refer to (1) a right to institute and carry on an action, or (2) the facts giving rise to an action. Cox v. American Freehold L. Mortgage Co., 88 Miss. 88, 40 So. 739. Does the term here refer to one or both, and if one only, to which? It manifestly refers to the first, for it is followed by the word "accrue," the meaning of which, in the language of the law, is "to come into existence as an enforceable claim; to vest as a right." Webster's New International Dictionary (2 Ed.), Accrue; Johnson v. Pyles, 11 Smedes M. 189; Central Trust Co. v. Meridian Light Railway Co., 106 Miss. 431, 63 So. 575, 51 L.R.A. (N.S.) 151; Graham McNeil Co. v. Scarborough, 135 Miss. 59, 99 So. 502; Atlantic Life Ins. Co. v. Serio, 171 Miss. 726, 157 So. 474; Amy v. City of Dubuque, 98 U.S. 470, 25 L.Ed. 228.
Does the use of the word "occur" indicate that the term here also refers to the facts giving rise to an action? In other words, does the word "occur" refer to the facts giving rise to a cause of action, and the word "accrue" to the coming into existence or the vesting of a right of action? The word "occur" is without technical import, and means "to meet one's eye; to be found or met with; to present itself; to appear; hence, to befall in due course; to happen." Webster's op. cit., Occur. If the word here means "to present itself, to appear," then it is synonymous with "accrue," for a cause of action appears when it comes into existence. When a cause of action accrues it becomes a right of action. It may be inaccurate to say that a right of action "may happen," but it would not be to say that it may present itself or appear. Bearing in mind that the statute is dealing with the right to begin and prosecute an action, the place where an action may be begun or prosecuted, to which the words "occur" and "accrue" here both refer; that the word "accrue" has a fixed legal meaning, i.e., to come into existence as an enforceable claim; to appear; and that one definition of the word "occur" as synonymous therewith, it would seem that it should here be so defined. If it be said that when so defined the use of both words was unnecessary, the answer is that such use of the words is not infrequent and is in accord with the rules of speech. That the two words are here separated by the word "or" does not negative this conclusion. According to the grammarians, the word "or" may suggest an alternative, but it may also indicate an appositional relation of thought, i.e., it may separate words or phrases, the second of which is the equivalent, or is explanatory, of the first. Webster's op. cit., Or; 3 Bouv. Law Dict. (3 Ed.), Or. "While it primarily marks an alternative, the word `or' may be used to express an alternative of terms, definitions, or explanations of the same thing in different words, introducing a synonym for the preceding term; and in this sense the term may be construed as having the same meaning as . . . `being,' `otherwise,' `otherwise called,' `that is,' `that is to say,' `to-wit.'" 46 C.J. 1125; Lewis' Sutherland Statutory Construction (2 Ed.), section 397.
To which of the definitions of a cause of action the word "occur" would refer if used alone is not before us, for it is here used in connection with the word "accrue," and it is hardly probable that the Legislature meant for them to refer to separate and distinct things. Few of the numerous cases cited by counsel construing statutes of other states are of value here, and none of them are of such character as should cause us to pause before proceeding to the conclusion at which we have arrived.
One of the material elements of a cause of action for malicious prosecution without which no cause of action therefor comes into existence is the termination of the prosecution complained of in favor of the defendant. The appellee therefore became vested with a right of action for malicious prosecution when but not until the prosecution he complains of terminated in his favor. This did not occur in Sunflower, but in Humphreys county.
Masonite Corporation v. Burnham, 164 Miss. 840, 146 So. 292, 91 A.L.R. 752, is not in conflict, but is in accord, herewith. Jones county is separated into two judicial districts; one designated in the court's opinion as the Ellisville district, and the other as the Laurel district. A creek flows through both districts, and by Burnham's land, which was situated in the Ellisville district. The Masonite Corporation, a foreign corporation doing business in the Laurel district, polluted the waters of this creek in the Laurel district, which damaged Burnham's land in the Ellisville district and interfered with his use thereof. Burnham sued the Masonite Corporation therefor in Ellisville district. The court said that the action could be maintained in either district, but it is clear that what was meant thereby was that the action could be maintained in the Laurel district for the reason that the corporation was doing business there; and that it could be maintained in the Ellisville district for the reason that the cause of action accrued there.
The court below should have sustained the appellant's plea in abatement and dismissed the cause without prejudice to the right of the appellee to institute another action. The judgment will be reversed, and the judgment which should have been rendered will be rendered here.
So ordered.