Garden, et al. v. Holley

Garden, et al. v. Holley. Malicious Prosecution. (Decided Nov. 26. 1908. 47 South. 716.) 1. Principal u/nd Age.nl; Liability of Principal for Prosecution; Evidence. — Where it appeared that the person who made the .affidavit was not a member of the firm, .but was a young man without property employed by defendant to keep the books and receive the money paid in at the store, it was proper to admit evidence of the fact that such person had instituted suit in the name of the firm and collected money on them by check payable to the firm, on the issue of whether or not he was defendant’s agent in instituting the prosecution; it being contended by plaintiff that the transfer to him of the claim forming the basis of the prosecution being merely to relieve defendant from liability on account of the prosecution. 2. Same. — Under the facts in this ease, whether or not the person who instituted the prosecution was acting as the agent of defendant with their knowledge so as to render the principal liable was one for the jury to determine. Appeal from Jefferson Circuit Court. Heard, before Hon. A. A. Coleman. Action by Mary Holly against Benjamin Garden and others. From a judgment for plaintiff, defendants appeal. Affirmed. The errors in the admission of evidence complained of are as follows: The question to the witness Bonner: “State whether or not H. Cohen prior to July, 1907. frequently brought several suits for the collection of debt in the name of Garden & Cohen in the inferior court of Birmingham before H. B. Abernathy, Judge.” And the question, “Did you collect any money for Garden & Cohen in any of said suits?” and to the witness Abernathy the same questions as to the witness Bonner. After verdict and judgment, motion was made for a. new trial based upon the errors assigned as above set out and the refusal of the court to give for defendants the general affirmative charge. W. T. Hill and Jambs A. Mitchell, for appellants. Counsel discuss assignments of error, but without citation of authority. A. Leo Op.eruoreer and Chas. A. Weaver, for appellee. The court properly overruled demurrers to the complaint. — Bee. 3352 Code 1896; Fuqua v. Gambill, 140 Ala. 464. The objections to evidence were properly overruled. — Little v. Bank of Dothan, 121 Ala. 215; B’ham Iiy. Co. v. Temí. O. é R. R. Co., 127 Ala. 137; II. 8. L. Ins. Co. v. Lesser, 126 Ala. 568; Robinson v. Green, 43 South. 797. [MAJORITY — SIMPSON, J.] SIMPSON, J. — This action rvas brought by the appellee against the appellants for damages for malicious prosecution. The facts are undisputed that the plaintiff was arrested under a charge of embezzlement, and that the prosecution was ended by an acquittal. Said arrest was made on the affidavit of 1-1. Cohen, and based on the facts that on July 10, 1907, either Henry Holly or he and wife, said Mary Holly, bought of the firm of Garden & Cohen certain articles of clothing, paying $25 in cash and agreeing to pay $65 additional, and said Holly and wife signed an instrument of writing, agreeing that sa.id property should remain the property of said firm until paid for, etc. The defendant claims that this claim was sold and transferred to said II. Cohen, and that he con. menced the prosecution, on his oaahi motion, without any suggestion from (he defendants. Said II. Cohen is the son of M. Cohen, and brother-in-laA? of B. Garden, of the firm of Garden & Cohen, and testified that he is employed as bookkeeper for that firm, and that his “sole duties” are to “keep the books” of said firm, and receive money paid in at the store. The claim of the plaintiff is that said transfer of said claim to said H. Cohen Avas merely simulated, for the purpose of relieving said B. Garden and M. Cohen from the liability in any suits or prosecutions instituted by said H. Cohen, Avho is a young man and Avithout any property. She claims, therefore, that said H. Cohen in commencing said malicious prosecution Avas really acting as the agent of said Garden & Cohen, AAdth their full knoivledge as to Avhat he was to do. Certain circumstances are testified to bearing on said contention. The only assignments of error insisted upon relate to the admission of certain testimony and to charges. OAving to the nature of the contention betAveen the parties, the plaintiffs have to rely upon grouping various circumstances Avhich may have a bearing on the question as to the bona fide of the transfer of the claim to II. Cohen. He having testified that his sole duties were to keep the books and receive money paid in at the store, the court properly admitted proof of said H. Cohen’s having frequently brought suits in the name of said firm, collecting'by checks payable.to said firm, etc., merely as circumstances to go to the jury. . This includes assignments, second, third, fourth, and fifth.-Lytle & Co. v. Bank of Dothan, 121 Ala. 218, 219, 26 South. 6; Birmingham R. Co. v. Tenn. C. I. & R. R. Co. 127 Ala. 137. 28 South. 679; U. S. Life Ins. Co. v. Lesser, 126 Ala. 568, 584, 28 South. 646; Warren v. Wagner, 75 Ala. 203, 51 Am. Rep. 446; Robinson & Co. v. Green, 148 Ala. 434, 43 South. 797, 798. There was no error in the refusal of the court to give the general charge in favor of'the defendant. It was for the jury to decide, in view of the circumstances, whether or not H. Cohen was acting as the agent of Garden & Cohen, and with their knowledge. For like reasons, there was no error in overruling the motion for a new trial. The judgment of the court is affirmed. Tyson, C. J., and Benson and McClellan, JJ., concur.