Brumbaugh v. Frontier Refining Co.

• Decision Date: 23 February 1962
• Docket Number: No. 35114,35114
• Citation: 173 Neb. 375,113 N.W.2d 497
• Parties: Quintin BRUMBAUGH, Appellee, v. The FRONTIER REFINING CO., a corporation, Appellant.
• Court: Nebraska Supreme Court

Page 497

113 N.W.2d 497

173 Neb. 375

Quintin BRUMBAUGH, Appellee, v. The FRONTIER REFINING CO., a corporation, Appellant.

No. 35114.

Supreme Court of Nebraska.

Feb. 23, 1962.

Syllabus by the Court

1. Probable cause is a reasonable ground of suspicion, supported by facts and circumstances of such a nature as to justify a cautious and prudent person in believing that the accused was guilty.

2. To maintain an action of malicious prosecution the plaintiff must prove malice and want of probable cause.

3. In an action for malicious prosecution where there is sufficient undisputed evidence to show probable cause, the trial court should direct a verdict for the defendant. This rule applies even though some of the facts supporting probable cause were disputed in the evidence on behalf of the plaintiff.

4. The test as to whether or not there was probable cause is to be determined in the light of facts and circumstances as they existed and were known at the time the prosecution was commenced and not from the viewpoint of subsequently appearing facts.

5. If a motion for directed verdict made at the close of the evidence in a case should have been sustained for want of evidence to support a verdict in favor of the party against whom made, it is the duty of the court on motion for judgment notwithstanding the verdict timely made to sustain such motion to set aside the verdict and to render judgment pursuant to the motion for a directed verdict.

Heaton & Heaton, Sidney, for appellant.

Harry Grimminger, Grand Island, for appellee.

Heard before CARTER, MESSMORE, YEAGER, SPENCER, BOSLAUGH, and BROWER, JJ.

MESSMORE, Justice.

This is an action at law brought by Quintin Brumbaugh, plaintiff, in the district court for Hall County, against The Frontier Refining Company, a corporation, defendant, to recover damages for malicious prosecution. The case was tried to a jury, resulting in a verdict for the plaintiff in the amount of $5,000. The defendant filed a motion for judgment notwithstanding the verdict or in the alternative for a new trial, which was overruled. Defendant perfected appeal to this court.

We will refer to Quintin Brumbaugh as plaintiff, and to The Frontier Refining Company as defendant.

The defendant is a corporation organized under the laws of the State of Wyoming, engaged in business in the State of Nebraska, and qualified to do business in this state.

The record discloses that on April 16, 1958, the plaintiff accepted and approved a contract with the defendant to operate a filling station in Grand Island. The contract provided in part that all merchandise supplied by the defendant would be retained by it until sold by the plaintiff; that the plaintiff would be responsible for all inventories of petroleum products and other merchandise supplied to the plaintiff by the defendant; that the plaintiff would remit to the defendant at Denver, Colorado, or the bank defendant designated, all sums collected by the plaintiff for merchandise sold; and that the plaintiff would prepare and submit to the defendant operating reports as directed by the defendant. The contract set forth the commission to be received by the plaintiff for the sale of certain specified items of merchandise. H. E. Armitage, vice president of the defendant, signed the contract in its behalf. This contract of employment was subject to be terminated at the pleasure of the defendant.

On August 6, 1958, H. R. Heaton, representative of the defendant, signed a complaint wherein the plaintiff was charged with the crime of embezzlement in the amount of $282.69, on or about July 12, 1958. At 9 p. m., on the same date, the plaintiff was brought before a justice of the peace and furnished bond in the sum of $1,000 for his appearance before the court on August 14, 1958, at 10 a. m. On August 14, 1958, preliminary hearing was held and the case was dismissed by the county attorney.

The county attorney of Hall County testified that he dictated the complaint at the request of H. R. Heaton, legal counsel for defendant and representing the defendant; that he had a conference with Heaton, and possibly other officers of the defendant, going over the records which were left by the defendant with him; that he was present at the preliminary hearing; and that he believed Fields and Thompson, for the defendant, might have been present. Hearing was had. Fields testified, and this witness dismissed the action because in his opinion, by the contract between the plaintiff and defendant, he believed the defendant had a civil action against the plaintiff, but not a criminal action against him. The plaintiff was released.

On cross-examination this witness testified that when this matter was brought to his attention the defendant brought certain books for examination; and that at that time, upon the evidence presented by the defendant to him, he believed there was probable cause to believe the plaintiff guilty of the offense charged, and upon this belief the complaint was filed and signed by Heaton.

On redirect examination this witness testified that in all instances wherein a complaint is made to his office and no law enforcement investigation is made, he requires the person making the complaint to sign it; that he had not seen the contract between the plaintiff and the defendant before the preliminary hearing; and that he had the impression that Heaton was making a full and complete disclosure of the defendant's business with the plaintiff, otherwise he would not have filed the complaint.

On recross-examination this witness testified that the evidence taken at the preliminary hearing disclosed a shortage on the part of the plaintiff.

A deputy sheriff served a warrant on the plaintiff at his home, and took him to the county jail. The plaintiff was kept in a room where he could use the telephone. The plaintiff called two or three people, including his attorney. This witness went home for supper. When he returned the plaintiff and others were still talking, and decided they could make bond. This witness took the plaintiff to the home of the justice of the peace. The bond was signed, and the plaintiff was released. The plaintiff was in custody 2 or 3 hours from the time he was arrested until he was released. On cross-examination this witness testified that the plaintiff was not put in a cell and locked up, but that outside doors of the jail were locked.

The plaintiff testified that he entered into the contract with the defendant and operated the filling station under such contract. Kenneth R. Fields was the supervisor of filling stations and would check the station occasionally, and was supposed to be available for the plaintiff to call if he had difficulty in making his reports. He was required to make a daily report, and had discount slips to fill out and credit cards to make out in duplicate. Up to July 1, 1958, if there was anything determined wrong or short it would show up on the reports which were sent to the office of the defendant and returned to him, and he would receive credit one way or the other, but it seemed that there was always something short. He went to Minnesota about the 28th or 29th of June, and returned July 4th. During his absence no reports were made out. He testified that he tried to figure out what happened while he was gone, to ascertain the amount of gas that was sold, and to make some kind of a report with reference to it; that he tried to call Fields to come out, but Fields was not at home; and that within a day or two Fields did come and talk to him about this matter, but did nothing about it. The plaintiff further testified that he did not recall making any bank deposits during that time; that the next time he saw Fields was when Fields came out to close the filling station and asked him for the keys; and that he gave Fields the keys to the station. Fields told the plaintiff that he was going to take what money there was in the station and apply it on the records, because the plaintiff was short in his accounts with the defendant. Fields did not count the money, and he never accounted to the plaintiff for the money. When Fields returned, he told the plaintiff that it appeared that the plaintiff was short $152. The plaintiff told Fields that he wanted a complete audit with everything itemized by his own auditor, and Fields told the plaintiff he had better get the money, borrow it if necessary, and if the plaintiff did not get the money he would be arrested. The plaintiff had some money coming for credits and salary, and told Fields that when he was credited with such amounts he would make up the difference in the shortage. Fields contacted the plaintiff two or three times about paying the so-called shortage. The first time the plaintiff knew that he was supposed to be $282.69 short was when he was arrested and that amount appeared in the complaint filed against him.

On cross-examination the plaintiff testified that it was understood by him that all the money he received for the merchandise sold he should deposit in the Overland National Bank in Grand Island, and that he could not use the money for any purpose except to deposit it in the bank; that he sent daily reports to the defendant which showed the amount of fuel on hand and what was sold, a report of the business done each day, the amount of cash on hand, and the amount received; that when he made the deposits, the deposit slips were sent to the defendant; that the contract set forth the amount of commissions he would receive for the sale of various items; that if he knew how much merchandise he sold and what he sold it for it was possible to compute the amount due him, but he did not compute these figures; and that when he started to work under the contract he was furnished with a stock of merchandise consisting of gas and other petroleum products, and $100 in cash.

There were five of the defendant's daily station reports bearing dates of June 30, 1958, July 1,...