F. H. SCHULTE, PLAINTIFF IN ERROR,
v.
B. R. FRAZEE, DEFENDANT IN ERROR
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The Florida Supreme Court reversed a judgment for malicious prosecution, holding that the plaintiff failed to prove both malice and want of probable cause, which are required elements for such a claim.
No, the plaintiff failed to prove by preponderating evidence the concurrence of both malice and want of probable cause.
“In an action for malicious prosecution the defendant in error recovered a judgment against plaintiff in error in the sum of one thousand dollars for which final judgment was entered.”
Establishes the underlying judgment being appealed.
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Join FLexlaw to unlock all legal intelligenceThe plaintiff in error, the defendant in the lower court, appeals a $1,000 judgment entered against him in an action for malicious prosecution. The ap…
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Per Curiam.
In an action for malicious prosecution the defendant in error recovered a judgment against plaintiff in error in the sum of one thousand dollars for which final judgment was entered. Writ of error is taken to that final judgment, error being assigned on the denial of a motion for a directed verdict and on certain alleged defects in the charge of the court.
We have examined the record and while we think the charge was defective we do not think the plaintiff successfully carried the burden of proving by preponderating evidence the concurrence of both malice and want of probable cause as prescribed by this Court' in Tatum Brothers Real Estate and Investment Company v. Watson, 92 Fla. 278, 109 So. R. 623. For such reasons the judgment below must be and is hereby reversed.
Reversed.
Terrell, C. J., and Ellis-and Brown, J. J., concur. Whitfield, P. J., and Strum and Buford, J. J., concur in the opinion and judgment.