Barrow v. Weddle Bros. Const.

• Decision Date: 30 September 1974
• Docket Number: No. 1--873,1--873
• Citation: 161 Ind.App. 601,316 N.E.2d 845
• Parties: John W. BARROW, Plaintiff-Appellant, v. WEDDLE BROTHERS CONSTRUCTION, Defendant-Appellee. A 153.
• Court: Indiana Appellate Court

Page 845

316 N.E.2d 845

161 Ind.App. 601

John W. BARROW, Plaintiff-Appellant, v. WEDDLE BROTHERS CONSTRUCTION, Defendant-Appellee.

No. 1--873 A 153.

Court of Appeals of Indiana, First District.

Sept. 30, 1974.

Richard L. Wilder, Bloomington, for plaintiff-appellant, Rogers, Wilder & McDonald, Bloomington, of counsel.

Frank A. Barnhart, Baker, Barnhart, Andrews Baker & Mann, Bloomington, for defendant-appellee.

LYBROOK, Judge.

Plaintiff-appellant Barrow appeals from a negative judgment upon his complaint for malicious prosecution against his former employer Weddle, presenting the following issues for review:

(1) Whether the decision of the trial court on appellant's claim of malicious prosecution is contrary to the evidence and contrary to law.

(2) Whether appellant was entitled to judgment on the claims of abuse of process and defamation of character.

Contemporaneous with judgment, the court entered the following findings of fact:

'FINDINGS OF FACT

1. That the defendant, Weddle Bros. Construction Co., Inc., was an Indiana Corporation during the time material to this cause of action.

2. That the plaintiff was an employee of the defendant and the plaintiff voluntarily terminated the employment relationship on July 21, 1967.

3. That on or about the 22nd day of July, 1967, Harold Weddle, the president of the defendant corporation, authorized one Wayne C. Andrews, a private security investigator employed by the defendant corporation, to undertake an investigation of the circumstances of the plaintiff leaving the employment of the corporation.

4. That the said Wayne C. Andrews conducted said investigation as requested, reduced the results of said investigation to writing, and under date of July 24, 1967, submitted a written report of the results of his investigation to the Prosecuting Attorney of Monroe County, Indiana.

5. That on the 24th day of July, 1967, the said Wayne C. Andrews signed a criminal affidavit charging the plaintiff with commission of the criminal offense of theft, which affidavit was sworn to before Thomas A. Berry, the Prosecuting Attorney of Monroe County, Indiana and was approved by the said Prosecuting Attorney of Monroe County, Indiana; and that said theft affidavit was filed as Cause Number C67 S141 in the Monroe Circuit Court at Bloomington, Indiana, on the 25th day of July, 1967,

6. That at the time he signed said affidavit, Wayne C. Andrews was an agent of the defendant corporation and was acting within the scope of authority granted to him by Harold Weddle, the president of the defendant corporation, in that he had been instructed to take such action on behalf of the corporation.

7. That on August 23, 1967, the plaintiff's attorney of record filed a Motion to Quash the affidavit filed on July 25, 1967, which was not ruled on by the Judge of the Monroe Circuit Court; that on November 30, 1967, the Prosecutor of Monroe County prepared an amended affidavit which was signed and sworn to by Douglas R. Bridges, the then duly appointed and acting Deputy Prosecuting Attorney of Monroe County, Indiana; that there is no record that said amended affidavit was filed in said cause.

8. That after said charge of theft had been filed in the Monroe Circuit Court, Harold Weddle, the present of the defendant corporation, had a telephone conversation with the plaintiff and advised the plaintiff that he would cause said criminal charge to be dismissed if the plaintiff would pay or make satisfactory arrangements to pay a personal note owed to the defendant corporation; that Wayne C. Andrews had no contract with or conversations with the plaintiff prior to signing said criminal affidavit.

9. That on December 6, 1967, a criminal affidavit was filed in the Monroe Circuit Court as Cause Number C67 S179 charging the defendant, John W. Barrow, with commission of the offense of forgery; that said affidavit was signed and sworn to by Douglas R. Bridges, a Deputy Prosecuting Attorney of Monroe County, Indiana, before Thomas A. Berry, the Prosecuting Attorney of Monroe County, Indiana, and without the knowledge of the said Harold Weddle, president of the defendant corporation.

10. That there is no evidence that said amended theft affidavit dated November 30, 1967, and said forgery affidaivt filed December 6, 1967, were commenced or caused to be commenced by any officer, employee or agent of the defendant corporation, including the said Wayne C. Andrews.

11. That on December 17, 1968, the plaintiff filed a Motion to Dismiss the Theft charge filed under Cause Number C67 S141, by his attorney, James Cotner, alleging delay of trial under Rule 1--4D, of the Indiana Supreme Court, which motion was never ruled upon by the trial judge.

12. That said criminal charge of theft terminated favorably for the plaintiff on August 28, 1969, when the Prosecuting Attorney of Monroe County, Indiana, filed a Motion to Dismiss said charge, which motion was sustained by the Judge of the Monroe Circuit Court; that the forgery charge filed as Cause Number C69 S179 was dismissed on motion of the Prosecuting Attorney of Monroe County, Indiana, on said date of August 28, 1969.

13. That the said Wayne C. Andrews, as an agent of the defendant corporation, did act in good faith and fully and truthfully made known all facts which were known to him, or reasonably apparent to him, by written report to the said Thomas A. Berry, Prosecuting Attorney of Monroe County, Indiana; and that said Prosecuting Attorney approved the filing of said criminal charge against the plaintiff and authorized the procurement of a warrant for the plaintiff's arrest on said charge.'

I.

In an action for malicious prosecution, the plaintiff must prove (1) that the defendant instituted or caused to be instituted a prosecution, (2) that the defendant acted with malice, (3) that there was a want of probable cause for instituting the prosecution, and (4) that the prosecution was terminated in the plaintiff's favor. Stivers v. Old National Bank (1970), 148 Ind.App. 196, 264 N.E.2d 339; Cassidy v. Cain (1969), 145 Ind.App. 581, 251 N.E.2d 852.

With respect to the original affidavit for theft filed on July 25, 1967, the trial court found against appellant on the element of want of probable cause, by determining in the conclusions of law, that appellee was entitled to the defense of advice of counsel. The principles governing the application of this defense were summarized in Indianapolis Traction and Terminal Co. v. Henby (1912), 178 Ind. 239, 97 N.E. 313. Therein, the court stated:

'Where, before the commencement of the prosecution, the prosecutor honestly and in good faith, sought advice of reputable counsel, and made to such counsel a full and true statement of all the material facts within his knowledge, and such counsel thereupon advised the prosecutor that the facts so stated warranted the prosecution, and, relying on the advice, the prosecutor in good faith commenced the action, such facts constitute probable cause, and consequently a complete defense against an action for malicious prosecution, although the advice given was erroneous. Scotten v Longfellow (1872), 40 Ind. 23; Terre Haute, etc., R. Co. v. Mason, supra (148 Ind. 578, 46 N.E. 332); Paddock v. Watts (1888), 116 Ind. 146, 18 N.E. 518, 9 Am.St.Rep. 832; Flora v. Russell (1894), 138 Ind. 153, 37 N.E. 593; Lawrence v. Leathers (1903), 31 Ina.App. 414, 68 N.E. 179; Shea v. Cloquet Lumber Co. (1904), 92 Minn. 348, 100 N.W. 111; 1 Ann.Cas. 930, and note on page 932; note to Ross v. Hixon (1891), 26 Am.St.Rep. 123, 127. The prosecutor must have sought the advice of counsel in good faith, and not as a shelter from a possible action for malicious prosecution. He must, to some extent, have been doubtful of his legal rights when he sought the advice, and he must, in good faith, have pursued the directions of his attorney in the belief that the attorney correctly and honestly advised him. McCarthy v. Kitchen (1877), 59 Ind. 500; note to VanMeter v. Bass (1907), 18 L.R.A. (N.S.) (49), on pages 50, 51. The omission, in the statement of facts to counsel, of any material fact within the prosecutor's knowledge deprives him of a reliance on probable cause as a defense by reason of advice of counsel. Scotten v. Longfellow, supra; Flora v. Russell, supra; Lawrence v. Leathers, Supra; Dunlap v. New Zealand, etc., Ins. Co. (1895), 109 Cal. 365, 42 P. 29; Flikkie v. Oberson (1900), 82 Minn. 82, 84 N.W. 651; Jackson v. Bell (1894), 5 S.D. 257, 58 N.W. 671; Dreyfus v. Aul (1890), 29 Neb. 191, 45 N.W. 282; Brown v. Smith (1876), 83 Ill. 291; note to VanMeter v. Bass (1907) . . ., 18 L.R.A. (N.S.) 49, 55--57.'

Appellant first argues that appellee failed to introduce sufficient evidence to establish the advice of counsel defense.

The original theft affidavit was signed and sworn to by an investigator employed by defendant corporation, and was approved by the prosecuting attorney. While neither of the men testified at trial, Defendant's Exhibit 1, a report prepared by the investigator and submitted to the prosecuting attorney on July 24, 1967, evidences the factual disclosure upon which appellee's defense rests. This report reads, in relevant part:

'On July 21, at 6:00 p.m. John Wayne Barrow, age 24, last known address post office box 833, Vernal pike, left his place of employment, Weddle, Construction Company, and hasn't been heard of since.

'Saturday, July 22, Harold Weddle went to his office and in the petty cash was a note that Barrow had left explaining that he had taken three day's salary which was due to him and amounted to about $73. Also missing from the safe an envelope containing a personal note to Mr. Harold Weddle in the amount of $2800. This note was taken out 1--28--66 and was to be payable within three years. This was to be paid back at the rate of $15.00 per week. Deductions from his pay started 1--10--67. This note was signed by John Barrow.

'Barrow had acess to all the books and had authority to...