Tort Law

This page within Virginia Tort Case Law is a compilation of cases reported by the Virginia Supreme Court and summarized by Brien Roche dealing with the topic of Malicious Prosecution-Malice.  

2004 Commissary Concepts Mgmt. Corp. v. Mziguir, 267 Va. 586, 594 S.E.2d 915.

Employer instituted criminal proceedings against employee for alleged embezzlement where employee had been instructed to make bank deposit. Bank deposit slip was for less than actual money on hand and therefore, that excess money was returned by bank to the employee who then put it in the safe back at his place of employment but did not tell his superior of that. When superior discovered discrepancy, he contacted the police. Issue is whether probable cause existed. Probable cause is set of facts that would cause a reasonable person to believe that plaintiff is guilty of the crime for which he is accused. In this case, probable cause existed. Lack of probable cause may lead to inference of malice. Existence of malice, however, cannot lead to inference of lack of probable cause.

1998 Hudson v. Lanier, 255 Va. 330, 497 S.E.2d 471.

Daughter of David Hudson was severely injured when tree fell on her while on property of Lanier. Mr. Hudson thereafter threatened suit against Lanier and went to Lanier property to take pictures. Lanier requested warrant for arrest of Hudson. Hudson was found not guilty of all charges. As matter of law Hudson failed to establish malice on part of Lanier. Lanier testified that actions were not motivated by malice but were based on desire to resolve hostilities. In reviewing trial court decision as to insufficiency of evidence on malice, evidence is reviewed under principle that trial court’s judgment will be upheld unless it is plainly wrong or without evidence to support it in this bench trial.

1978 Pallas v. Zaharopoulos, 219 Va. 751, 250 S.E.2d 357.

Lack of probable cause may not be inferred from malice, although malice may be inferred from lack of probable cause.

1978 Lee v. Southland Corp., 219 Va. 23, 244 S.E.2d 756.

Institution of criminal prosecution, not for purpose of bringing offender to justice, but for primary purpose of using it as means to collect debt, is for improper purpose and therefore malicious. It is proper to award punitive damages only when actual malice, or malice in fact, has been established by evidence. Actual malice, or malice in fact, may be established by showing that prosecutor’s action was prompted by ill will, malevolence, grudge, spite, wicked intention, or conscious disregard of rights of another.

1976 Bain v. Phillips, 217 Va. 387, 228 S.E.2d 576.

Evidence fully sustained finding of jury on issues of legal malice and actual malice to support punitive damage award.

1976 Tweedy v. J.C. Penney Co., 216 Va. 596, 221 S.E.2d 152.

Plaintiff need not prove actual malice. Malice may be inferred from lack of probable cause.

1971 Gaut v. Pyles, 212 Va. 39, 181 S.E.2d 645.

Legal malice may be inferred from want of probable cause but want of probable cause will not be inferred from legal malice.

1967 Giant of Va., Inc. v. Pigg, 207 Va. 679, 152 S.E.2d 271.

In order to authorize recovery of compensatory damages, it is necessary only that plaintiff prove legal malice. But to. recover punitive damages, plaintiff must show that defendant acted with actual malice, in sense of personal ill will, or under circumstances of insult, rudeness, or oppression or in manner showing reckless and wanton disregard of plaintiff’s rights. Also, actual malice must be shown by evidence especially addressed to this question; it cannot be inferred from showing of want of probable cause.

1964 Wiggs v. Farmer, 205 Va. 149, 135 S.E.2d 829.

Malice may be inferred from want of probable cause but not vice versa.

1961 Spitzer v. Clatterbuck, 202 Va. 1001, 121 S.E.2d 466.

Malice was shown to exist based on prior actions of parties.

1946 Omdorff v. Bond, 185 Va. 497, 39 S.E.2d 352.

Plaintiff must allege and prove malice and lack of probable cause for criminal prosecution.