Parisian Co. v. Williams | Cases | Westlaw

**123 *379 Suit for malicious prosecution by S.A. Williams, appellee, against appellant, the Parisian Company, and its manager, Laurens Block, resulting in a verdict and judgment for the plaintiff in the sum of $3,000, from which judgment the defendants prosecute this appeal.

The evidence for the plaintiff tended to show as follows: That he was manager and largely interested in the firm of S.A. Williams & Co., a mercantile establishment in the city of Birmingham, engaged chiefly in selling ladies' ready-to-wear clothing; and that the defendant the Parisian Company, of which the defendant Laurens Block was manager and had full charge and control, was engaged in the same business. The two stores were in the “same block on Third avenue, about Nineteenth street, between Nineteenth and Twentieth streets, on the south side of the avenue,” and adjoined. At the time this cause of action arose, the Williams Company had been in business for about two months, and prior to this occurrence the plaintiff had been approached by defendant Block with a view of buying him out, but the plaintiff finally refused to sell. Prior to this occurrence plaintiff had also been approached by defendant Block's kinsman, who was also his attorney, with a complaint as to the arrangement of the front of the S.A. Williams & Co. store, which **124 *380 Block claimed was an imitation of the front of the Parisian Company's store, thereby deceiving the public and inducing people to enter the same under the impression it was the Parisian, as the Parisian occupied the upper floors of the building in which the Williams Company was located. However, upon investigation of the authorities, no action was brought by the attorney in the court.

Plaintiff's wife assisted in the business, and on November 3, 1916, was in New York, buying goods for the appellee. That plaintiff had very broad acquaintance with eastern manufacturers on account of his former experience as a buyer for eastern firms, and his thorough knowledge of the trade, is shown by the evidence. It is further shown that Mrs. Williams had succeeded in buying a large stock of ladies' waists, coats, suits, and evening gowns in a job lot at a very low wholesale price, and as a part of an advertising campaign she sent a telegram from New York to Birmingham, stating what she had bought, and advising that a special sale be made on them; and that the eastern manufacturers were extending every courtesy to make the business a success; that plaintiff gave the telegram to the newspaper advertising agent, who was also connected with the Birmingham Ledger, and who wrote the advertisements himself after having been given the items by the plaintiff; that the plaintiff delivered the telegram received from Mrs. Williams to the advertising agent with instructions to follow out those items and advertise them as the telegram called for. The telegram was offered in evidence. The advertisements were written up by the agent, one in the Birmingham News and the other in the Birmingham Ledger. By mistake, either of the printer or the advertising man, the prefix “Mrs.” was omitted from the signature of the telegram printed in the Ledger, but the telegram was signed by Mrs. S.A. Williams. The advertisement set out this telegram, and appeared on that day in both the News and the Ledger. The two advertisements were identical, with the exception that in the Ledger advertisement, in setting out the signature to the telegram, the prefix “Mrs.” was omitted. The advertisement is as follows:

That upon appearance of these advertisements in the paper, the defendant Block called one Cullen, who was acting secretary of **125 *381 what was known as the Ad Club, an organization of some of the retail firms of Birmingham, organized to protect themselves against excessive advertising rates, and also to protect the public against false and fraudulent advertisements. Defendant Block also called up an attorney, who was at that time counsel for the Ad Club, and, also, the advertising managers of other firms in Birmingham, all of which resulted in a conference at defendant Block's private office, which was his office as manager of the Parisian Company, at its place of business. All of those present at the conference were members of .the Ad Club, except Block, and composed what is known as a protection committee. The president of the club was summoned and brought into the conference at this meeting. The defendant Block stated to the secretary that he wanted to call attention to an advertisement which he believed to be untrue, false, and misleading, and stated that the advertisement contained a “fake” telegram, to which the secretary replied he was ready to investigate it, and Block suggested that a warrant should be issued before an investigation was made in order to secure the evidence. The secretary desired that the evidence be secured before any warrant was sworn out; and it was suggested that two of the articles advertised—a plush coat and a georgette waist—be bought. It was finally agreed that the secretary's wife do the buying. It developed that there were no funds in the treasury of the club for this purpose, and thereupon the defendant Block offered to furnish the money, and gave the secretary $17.50, with which his wife was to make the two purchases above mentioned. The defendant Block also paid $25 to the fund out of which the fee of the club's attorney for the prosecution was to be paid. A few days subsequent defendant Block paid an additional $25 to this fund, either for himself or for some other party not disclosed. It is further shown that the secretary's wife was instructed to purchase one of the cheaper waists.

The purchases were made, and the secretary of the club stated that the coat bought was found to be the full value placed upon it in the advertisement; but the waist was variously estimated at different prices. The evidence for the defendant tended to show that it was not of the value of $7.50, as advertised. Defendant's evidence shows that, in the conference the advertisements in each of the papers were before them, and it was known that the plaintiff was not in New York.

Before the prosecution, the plaintiff was not consulted to see whether or not the omission of the prefix “Mrs.” to the telegram in the Ledger might have been a mistake. It is shown that it was the custom of the Ad Club to have a conference with the party accused before a prosecution was begun, but this course was not pursued in this case.

After these purchases were made, the secretary of the club was ordered by the president to have the plaintiff arrested; and that plaintiff was arrested by a city officer, as was also ordered by the attorney for the club. A complaint was filed based upon City Ordinance 214–C, containing five counts. The first charged that the telegram set out in the advertisement was not sent; the second, that said telegram was not sent on the day it purported to have been sent; third, that the georgette and crepe de chine waists purporting to be of $7.50 values, advertised for $2.95, were not of $7.50 value; fourth, that the plush coats advertised for $14.95 were not $27.50 values as stated in the advertisement; and, fifth, that the georgette and crepe de chine waists referred to in the advertisement were not $7.50 values, and the plush coats were not $27.50 values.

The plaintiff made bond, and trial was had in the recorder's court of the city of Birmingham, resulting in a conviction and fine of $10 upon the count as to the waist; and as to the other charges he was found not guilty. Upon appeal the prosecutor not appearing, the case in which he had been found guilty by the recorder was dismissed.

On the trial in the recorder's court the waist and coat purchased were in evidence, and it seems some other waists also.

Witness Kaufman, for the plaintiff, testified as to examining these waists, which were shown him at the trial in the recorder's court; that he had been in that line of business for about 20 years, and that the retail price for the waist shown him would be from $7.50 to $10 in Birmingham. The evidence of Miss Davis, witness for the plaintiff, tended to show that all the waists on the counter and offered for sale at this time were worth $7.50, as advertised; she having had experience in that line of business, and at that time was in the employ of S.A. Williams & Co.

Plaintiff, himself, however, testified that this particular waist, purchased as above stated, was not, in his opinion, worth $7.50, and that he had never claimed that it was worth $7.50, but that the same waist would sell in Birmingham in most stores for $3.95. His evidence tended to show that a large number of the other waists were of the full value of $7.50 and more; that the telegram set out in the advertisement as to these waists stated the “values to $7.50,” and likewise as to the other articles. It is further shown that he (plaintiff) had been engaged in the business for a number of years, and by broad acquaintance was enabled to purchase in job lots such merchandise at a very low figure and make a considerable profit.

Plaintiff's evidence shows that, following the arrest, and before the trial, the attorney **126 *382 for the Ad Club had been instructed by the club to drop the case, and that the said Ad Club ceased to have anything further to do with the prosecution. This testimony was objected to by the defendant, and the objection overruled. Notwithstanding this instruction, the attorney proceeded to prosecute the case, and succeeded in having the plaintiff convicted in the recorder's court. The attorney for the Ad Club in the prosecution of this case had been the attorney who had handled the legal matters of the club regularly. He had been instrumental in having the advertising law enacted in the state on behalf of the club.

The secretary of the club testified that he went down to the city hall to swear out the warrant, and that the attorney for the Ad Club went with him as far as one Black's store, and stopped on the Nineteenth street side of that store.

Plaintiff's evidence further tended to show that his prosecution was made a matter of considerable discussion in the city; that he lost time attending the trial of the cause; that he employed an attorney to defend him. Whereupon he was asked the following question, “How much did you pay him?” Objection was interposed on the ground that it was immaterial, irrelevant, and incompetent, which objection was overruled. Thereupon plaintiff answered, $300, which included his services in the recorder's court and in the circuit court on appeal. Plaintiff's evidence further shows that publicity was given to his arrest in the Birmingham News; that the statements made in the telegram sent from his wife were true as therein stated; that defendant Block was part owner of the Parisian Company, and was its manager, having full and complete charge of its business.

Defendant Block did not testify in the cause, but offered evidence tending to show that the waist and plush coat purchased by the secretary's wife were not of the value advertised; that the prosecution was carried on by the Birmingham Ad Club, and not by the defendant Block; that the arrest of the plaintiff was at the instruction of the president of the Ad Club; and that the attorney was employed by the Ad Club. Evidence was also offered tending to show that the attorney continued the prosecution after he was instructed by the Ad Club to drop the same on his own account and as a citizen.

There was considerable evidence offered as to the value of the different articles, and also that the waist purchased was a plain waist and not a beaded waist, as some of the evidence for the plaintiff tended to show, and that beaded waists were more expensive.

The testimony of the attorney for the Ad Club tended to show that he did not attend any conferences, and that he continued the prosecution on his own account, he was instructed by the Ad Club to drop the same.

The defendant requested the affirmative charge, which was refused. Defendant objected to the testimony of Kaufman, witness for the plaintiff, as to the value of certain waists exhibited to him on the trial of the cause in the recorder's court, which objection was overruled.

Among the defendant's refused charges were the following:

Defendants made motion for a new trial upon the ground that the verdict was excessive and contrary to the evidence, and contrary to the law as charged to the court, which motion was overruled by the court.