Catrone v. 105 Casino Corp.

• Decision Date: 13 May 1966
• Docket Number: No. 5003,5003
• Citation: 414 P.2d 106,82 Nev. 166
• Parties: Michael C. CATRONE, Appellant, v. 105 CASINO CORPORATION, a Nevada corporation, and Robert Van Santen, Respondents,
• Court: Nevada Supreme Court

Page 106

414 P.2d 106

82 Nev. 166

Michael C. CATRONE, Appellant, v. 105 CASINO CORPORATION, a Nevada corporation, and Robert Van Santen, Respondents,

No. 5003.

Supreme Court of Nevada.

May 13, 1966.

Harry E. Claiborne, Las Vegas, for appellant.

Samuel S. Lionel and Don L. Griffith, Jones, Wiener & Jones, Las Vegas, for respondents.

THOMPSON, Justice.

This appeal is from a summary judgment for 105 Casino Corporation and Van Santen, the defendants in an action brought by Catrone for damages for false imprisonment and malicious prosecution. On the record presented we must agree with the district court that there is no genuine issue as to any material fact. Accordingly, we affirm.

The corporation owns the Nevada Club, a gaming establishment in Las Vegas. Van Santen is the principal stockholder and president. Catrone claims to have marked a seven dollar keno ticket at the club on which all eight numbers marked were drawn, thus entitling him to $25,000. When he presented his ticket for payment, the club officials examined the machine original ticket and duplicate and concluded that Catrone's ticket was suspicious enough to warrant investigation. The Club, the Las Vegas Police Department, and the State Gaming Control Board investigated. The police and Control Board investigations resulted from complaints lodged with those agencies by Catrone. The Control Board required the corporation to deposit $25,000 in trust pending the outcome of its inquiry. When the investigations were completed, the $25,000 was released to the corporation. Detective Compton of the Las Vegas Police signed a criminal complaint charging Catrone and three employees of the Nevada Club (who were in charge of the keno game on which Catrone was supposed to have wagered) with the crime of attempting to obtain money under false pretenses. The defendants were arrested pursuant to warrant. A preliminary hearing followed, at which the magistrate ruled that Catrone and two others be held to answer in the district court. The district court trial resulted in a dismissal of the charges against Catrone. This civil action followed.

The false imprisonment claim for relief is without substance because Catrone does not claim that the warrant under which he was arrested was void. His imprisonment was under legal process. Therefore, this claim fails. Dixon v. Reno, 43 Nev. 413, 187 P. 308 (1920); Buckley v. Klein, 206 Cal.App.2d 742, 23 Cal.Rptr. 855 (1962); Prosser, Torts, 53 and 646 (2d ed. 1955). 'If the imprisonment is under legal process but the action has been carried on maliciously and without probable cause, it is malicious prosecution. If it has been extrajudicial, without legal process, it is false imprisonment.' 1 Harper & James, Torts 232 (1956). Thus, we direct our attention to the claim of malicious prosecution.

The elements of a claim for relief for malicious prosecution are want of probable cause, malice, termination of the litigation and damage. Miller v. Schnitzer, 78 Nev. 301, 371 P.2d 824 (1962); Bonamy v. Zenoff, 77 Nev. 250, 362 P.2d 445 (1961). Normally, the person who signs the criminal complaint is a defendant in the later civil suit. This case is different as police officer Compton is not a defendant in this action. Catrone chose to sue only the 105 Casino Corporation and Van Santen on the theory that they maliciously induced Officer Compton to bring the criminal charges. We approve the rule that one who procures a third person to institute a malicious prosection is liable in damages to the party injured to the same extent as if he had instituted the proceeding himself. Blancutt v. Burr, 100 Cal.App. 61, 279 P. 668 (1929); Collins v. Owens, 77 Cal.App.2d 713, 176 P.2d 372 (1947); Sandoval v. Southern Calif. Enterprises, 98 Cal.App.2d 240, 219 P.2d 928 (1950); Restatement, Torts, par. 653, (g). We must, therefore, examine the record before us and ascertain if an issue of fact exists as to whether the defendants were the proximate cause of the criminal prosecution.

All relevant factual data contained in the papers supporting the motion for summary judgment and in those opposing that motion show that the criminal investigation was instigated by Catrone rather than by the defendants. Mindful that we must accept as true all evidence favorable to Catrone, the party against whom summary judgment was entered (Franktown Creek Irrigation Co. v. Marlett, 77 Nev. 348, 364 P.2d 1069 (1961); Parman v. Petricciani, 70 Nev. 427, 272 P.2d 492 (1954); Smith v. Hamilton, 70 Nev. 212, 265 P.2d 214 (1953)), we note the statement of fact in his affidavit that the investigations arose by 'my formal complaint filed both with the Gaming Control Board and the City of Las Vegas Police Department.' To this extent, at least, the law was concededly put in motion by Catrone. Notwithstanding this fact, Catrone insists that the record shows the existence of a genuine issue of fact as to whether the defendant Van Santen maliciously induced Detective Compton to file a criminal charge.

Detective Compton stated in his affidavit that 'neither Van Santen nor any other person employed by or associated with the Nevada Club requested or suggested that any of the defendants in the criminal action be prosecuted criminally.' The detective said that he recommended criminal prosecution because of his belief that the defendants had 'participated in an unlawful attempt to defraud the Nevada Club by means of a fraudulent keno ticket.'...