1. MALICIOUS PROSECUTION — ADVICE OF PROSECUTING ATTORNEY. — In an action for malicious prosecution evidence held to support a finding that defendant, before procuring a warrant for arrest of plaintiff did not make a full and fair statement of all known facts to the prosecutor. 2. MALICIOUS PROSECUTION — MALICE. — Where defendant instituted a prosecution against plaintiff for larceny without probable cause, malice may be inferred. 3. MALICIOUS PROSECUTION — SUFFICIENCY OF EVIDENCE. — In an action for malicious prosecution evidence held to warrant a finding that the criminal prosecution complained of was instituted without probable cause and with malice. 4. MALICIOUS PROSECUTION — JURY QUESTIONS. — In an action for malicious prosecution, whether the oil company's local manager having authority to protect its property was acting in its behalf in instituting a criminal prosecution against plaintiff for taking possession of a truck on which plaintiff had a mortgage held for the jury. 5. CORPORATION — PUNITIVE DAMAGES. — Punitive damages are recoverable against a corporation for wilful, wanton and malicious conduct of its agent or servant in the line of duty. 6. CORPORATION — LIABILITY FOR ACTS OF AGENT. — In an action for malicious prosecution, whether the acts of an agent in instituting a criminal prosecution against plaintiff were the acts of the corporation so as to warrant punitive damages against the corporation held for the jury. 7. MALICIOUS PROSECUTION — EXCESSIVE DAMAGES. — In an action for malicious prosecution, an award of $5,000 held under the evidence to be excessive by $2,500.
STATEMENT BY THE COURT.
This suit was instituted by appellee against appellants to compensate an alleged malicious prosecution. The facts and circumstances as produced in testimony and found by the jury were to the following effect:
Appellant, A. R. McKewen, was the residential manager and agent for the appellant, Louisiana Oil Refining Corporation, at Stuttgart. The Louisiana Oil Refining Corporation owned a system of storage tanks located at Stuttgart, and, in addition thereto, also owned a filling station building, gasoline pumps and other necessary equipment to carry on its oil business. Appellant, A. R. McKewen, was employed by the Louisiana Oil Refining Corporation to conduct its business in that vicinity. Sometime prior to the alleged occurrence here in controversy, appellee, Ross Yelton, was employed by agent and manager McKewen to drive a gasoline distributing truck. This truck was used for the purpose of transporting gasoline, kerosene, motor oils, etc., to the various customers of the Louisiana Oil Refining Corporation in and around Stuttgart. Under McKewen's contract of employment with the oil company, the agent was to and did furnish the chassis of the truck used in performance of this duty. The gasoline tank and frame of the truck were owned by the oil company. Leading up to this controversy, McKewen borrowed money from appellee, which was used in the purchase price of the chassis and truck. As security for this loan of money, McKewen executed to appellee a chattel mortgage on the truck. A few days prior to the incidents herein complained of, appellee was given a two weeks' lay-off by McKewen, and on the expiration of this time reported for duty, whereupon he was advised by McKewen that his services were no longer required by appellants. Some controversy then arose between McKewen and appellee as to the money due appellee under the chattel mortgage, but the money was not then paid over. Shortly thereafter appellee saw the truck upon which he had a chattel mortgage standing upon the streets of Stuttgart, and he took possession of same, drove it to his home and locked it up in his garage. McKewen made demand upon appellee for the return of the truck, equipment and stock of merchandise thereon. Appellee, according to his testimony, which was found to be true by the jury, offered to pay McKewen for the stock of merchandise on the truck, but this was refused. Immediately thereafter, and on the same day, McKewen procured the arrest of appellee on a warrant issued by a justice of the peace, in which warrant appellee was charged with grand larceny. The arrest occurred on Saturday, and on the following Monday appellee was acquitted and exonerated from said charge.
The testimony further tended to show that McKewen was the sole agent and manager of appellant oil company in Stuttgart; that he had exclusive possession of the properties of said oil company in that vicinity; that he had possession of the stock of merchandise, not as owner, but as agent of the oil company; that it was his duty to effect sales of the merchandise and to collect the money therefor or else effect sales upon approved accounts.
The instructions given and refused by the trial court are not complained of in briefs, therefore are not here set out. The jury returned a joint verdict against both appellants, and in favor of appellee, for the sum of $5,000, and from the judgment entered thereon, this appeal is prosecuted. Other facts will be stated or referred to in the opinion.
JOHNSON, C.J.
(after stating the facts). Appellants first urge that the verdict against each appellant is not supported by the testimony. The basis for appellant's contention as to no liability against McKewen is put upon the following grounds:
That McKewen, prior to procuring the warrant of arrest, gave a full and fair statement of all the known facts to the public prosecutor, and he followed this advice. It suffices to say, in reference to this contention, that McKewen's testimony is flatly contradicted by that of the public prosecutor. This officer was a witness in the case and testified that, if McKewen had revealed all the facts when in his office, he would not have issued an information. It is true, of course, had McKewen given a full and fair statement of all the known facts in reference to the controversy to the public prosecutor, then had acted upon the advice of such official, it would be a complete defense. The jury found that McKewen did not make a full and fair statement of all the known facts to the public prosecutor, and its finding in this regard is supported by the testimony.
It is next said, in behalf of appellant McKewen, that the evidence fails to establish either want of probable cause or malice. This court held, in Williams v. Orblitt, 131 Ark. 408, 199 S.W. 91, that, in an action for damages for malicious prosecution, malice may be inferred where there was a lack of probable cause, even though there was no express showing of malice.
We also said in Cable v. Carey, 135 Ark. 137, 204 S.W. 748, that malice may be inferred from want of probable cause.
On the question of probable cause in the instant case but little need be said. Really, there can be no doubt but that appellant McKewen knew that appellee had no intention of stealing either the truck or the merchandise thereon. Without reviewing the testimony in this regard, it suffices to say that the jury was fully warranted in finding that appellant McKewen had no reason, cause or excuse for instituting the criminal prosecution against appellee. If appellant McKewen instituted the prosecution without probable cause, and we have no hesitancy in saying that he did so, then malice may be inferred.
Neither do we hesitate in saying that the testimony here presented fully warranted the jury in finding that the criminal prosecution instituted against appellee by appellant McKewen was without probable cause and with malice. The contention, in reference to the nonliability of the Louisiana Oil Refining Corporation, is grounded upon the contention that McKewen, in obtaining the warrant of arrest in the criminal prosecution, was acting in his own right and not in aid of any business being transacted for the oil company, and that appellee was charged with stealing property of McKewen and not that of the oil corporation. The argument is that McKewen had a special ownership in the property and was fully justified in treating it as his own, and that the criminal prosecution was instituted against appellee in protection of this special ownership. On this question the jury was fully warranted in finding that McKewen was the agent and local manager of the appellant oil company in Stuttgart; also that he had the exclusive possession and control of the oil plant and merchandise located in that vicinity. The sale and disbursements of all the oil company's products in that vicinity was under the exclusive control of McKewen. Naturally, McKewen had the duty of protecting and preserving appellant oil company's merchandise, which had been theretofore entrusted to his care. In furtherance of the performance of this duty, he had the apparent authority to do and perform any and all things necessary for the preservation and protection of said property. This court expressly so decided in Chicago, R. I. P. Ry. Co. v. Gage, 136 Ark. 122, 206 S.W. 141, wherein this court said:
"Here we have the fact that the agent was placed in custody of the property of the principal with authority to protect it, and the evidence clearly shows that the criminal prosecution was instituted, not for the purpose of punishing a past offense, but as a means of regaining possession of the property."
The facts in the instant case come clearly within the language used in the Gage case. Here, as there, an agent was placed in custody of the oil company's property with authority to preserve and, protect it, and we are satisfied that the criminal prosecution was instituted by him for the sole and only purpose of regaining possession of the property, and not for the purpose of punishing a past offense. At any rate, the jury was fully warranted in finding this to be the fact.
Our attention has been called to Little Rock Traction Electric Co. v. Walker, 65 Ark. 144, 45 S.W. 57; Little Rock Railway Electric Co. v. Dobbins, 78 Ark. 553, 95 S.W. 788; St. Louis, I. M. S. Ry. Co. v. Waters, 105 Ark. 619, 152 S.W. 137; Dickinson v. Muse, 135 Ark. 76, 204 S.W. 609, and a number of other cases decided by this court. Without going into a detailed discussion of the principle of law discussed in the cases cited, we deem it sufficient to say that neither of these cases conflicts with the law as announced in the Gage case heretofore cited.
In any event, the jury was warranted in finding that appellant oil company had placed McKewen in charge of its properties and merchandise in the city of Stuttgart, with the implied authority to do any and all things necessary to preserve and protect its property, and that the criminal prosecution instituted against appellee by McKewen was done in performance of his duty as agent of the oil company.
It is next insisted on behalf of appellant, Louisiana Oil Refining Corporation, that the jury's verdict awarding punitive damages is not supported by the testimony.
Under a long line of decisions by this court, punitive damages are recoverable against a corporation for willful, wanton and malicious conduct of their agents and servants in line of their duties. Citizens' R. R. Co. v. Steen, 42 Ark. 321; Railway Company v. Hall, 53 Ark. 7, 13 S.W. 138; Railroad Co. v. Davis, 56 Ark. 51, 19 S.W. 107; Fordyce v. Nix, 58 Ark. 136, 23 S.W. 967; St. Louis, I. M. S. Ry. Co. v. Power, 64 Ark. 142, 41 S.W. 50; St. Louis, I. M. S. Ry. Co. v. Wilson, 70 Ark. 136, 66 S.W. 661.
In the case of Little Rock Ry. Electric Co. v. Dobbins, supra, on the question of the right to recover punitive damages against a corporation, this court held: "This court has often, in cases of this class as well as in other cases, affirmed the doctrine that for acts done by the agents of corporations, in the course of its business, and of their employment, the corporation is responsible, in the same manner and to the same extent as an individual is responsible under similar circumstances."
In the instant case we conclude that the jury was fully warranted in finding that the acts of McKewen in instituting criminal prosecution against appellee were, in truth and in fact, the acts of the oil company, and that the oil company is liable therefor.
Lastly, it is urged that the award by the jury of $5,000 as damages for the wrongful acts of the appellants is excessive. This contention should be sustained. Our attention has been called to no case, approved by this court, wherein an award of $5,000 was approved under similar facts and circumstances. We have reached the conclusion that an award of $2,500 will fully compensate appellee for all damage suffered by him to his reputation, character and good name by reason of the wrongful act complained of, and the judgment will therefore be reduced to this sum.
The judgment of the Arkansas Circuit Court is therefore reduced to $2,500, and, as thus modified, is affirmed.
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