City of Pensacola v. Owens

• Decision Date: 01 February 1979
• Docket Number: No. 53795,53795
• Citation: 369 So.2d 328
• Parties: CITY OF PENSACOLA, a Municipal Corporation, Petitioner, v. Kiplan Carlyle OWENS, Respondent.
• Court: Florida Supreme Court

Page 328

369 So.2d 328

CITY OF PENSACOLA, a Municipal Corporation, Petitioner, v. Kiplan Carlyle OWENS, Respondent.

No. 53795.

Supreme Court of Florida.

Feb. 1, 1979.

Rehearing Denied April 27, 1979.

H. Edward Moore, Jr. of Sherrill & Moore, Pensacola, for petitioner.

William R. Davenport, Pensacola, for respondent.

HATCHETT, Justice.

We have for resolution a certified question: In an action for malicious prosecution, is it the function of the court or of the jury to determine the existence of probable cause? ¹ Jurisdiction is pursuant to article V, section 3(b)(3), Florida Constitution. Where the facts are undisputed, as is the case here, the court must determine probable cause.

The facts of the case and its history are set out in the First District Court of Appeal's opinion as follows:

Appellant constructed two large cardboard signs saying "Speed Trap Ahead" and placed them on both sides of a Pensacola intersection at which he had observed police officers using radar equipment. Moments later, he was arrested on a charge of "obstructing a police officer in the performance of his duties," a violation of Section 843.02, Florida Statutes. After an apparently heated exchange with one of the officers, appellant was put in the back of a police cruiser and taken to the city jail, fingerprinted, and booked. He was later released on bail.

At his arraignment, appellant pleaded not guilty and made a motion to dismiss, to which the state did not file a traverse. The county judge dismissed the charges, finding that appellant's acts did not constitute obstruction as a matter of law. Appellant then sued the City of Pensacola for false arrest and imprisonment and malicious prosecution. After appellant presented his case at that trial the circuit judge directed a verdict in favor of the city.

Appellant now contends on appeal that the trial court erred in taking the case from the jury. Appellee urges that there were no disputed issues of fact and the sole matter for the trial court's determination was whether the police officers had probable cause to believe that an offense had been committed. We agree with appellant and reverse.

Owens v. City of Pensacola, 355 So.2d 1266, 1267 (Fla. 1st DCA 1978).

To resolve the issue in this case, we must examine Oosterhoudt v. Montgomery Ward & Co., 316 So.2d 582 (Fla. 1st DCA 1975), Cert. denied, 333 So.2d 463 (Fla.1976). In Oosterhoudt, a woman entered a department store intending to buy some writing materials. After purchasing an item, she picked up six felt writing pens and placed them between the bag containing the purchased item and her chest. After browsing in the store for a short time, she left the store. After she had gone about 15 feet, she started to return to the store. As she turned to go back into the store, she was approached by a security person who asked to examine the contents of the bag. As the shopper opened the bag, the pens that had been held between her body and the bag fell to the ground. The shopper offered to pay for the pens but payment was refused. She was later interviewed by another security officer who also refused her offer to pay for the pens. Police authorities were summoned, and the shopper was arrested and charged with petit larceny. The petit larceny charge was subsequently dismissed for lack of probable cause.

The shopper then filed a two-count complaint. The first count alleged false imprisonment, and the second count alleged malicious prosecution. The trial court found that the facts were not in dispute and entered final summary judgment in favor of the store.

The First District Court affirmed the trial court's entry of summary judgment on the false imprisonment count, relying on section 901.34, Florida Statutes (1975). ² On the malicious prosecution count, it held that probable cause was a question for the jury and stated:

However, as to the second count of the complaint alleging malicious prosecution, quite another problem is presented. Appellee cites, and urges our adoption of, an article appearing in 87 A.L.R.2d at page 183 in which article we are told that it is the function of the court and not the trier of fact to determine the question of probable cause in malicious prosecution actions, candidly conceding that the basis for such contention is the apprehension that if the question of probable cause be left to a jury that body of citizens may not be trusted to sufficiently safeguard the rights of defendants. The cited article recites that such is the established law "at least by the overwhelming weight of authority," recognizing that a minority of jurisdictions hold contra. Neither party has cited any Florida case on the point and independent research has failed to reveal any. However, we are of the view that the general philosophy of the jurisprudence of the State of Florida is more in line with trust and confidence in the jury system which, according to the article in A.L.R.2d above mentioned, would place Florida in the minority.

Oosterhoudt v. Montgomery Ward & Co., 316 So.2d at 584.

The majority view on this question is stated at pages 188-89 of 87 A.L.R.2d:

The broad general principle that in the determination of the question of probable cause in malicious prosecution actions, the function of the jury is more limited than that ordinarily afforded it in civil actions in general, and that the function of the court is correspondingly enhanced, is at least theoretically recognized by the great majority of courts, as indicated by their announcement by one or more of the following rules: (1) that, on undisputed or admitted facts, the question of probable cause is one entirely for the court to determine, or, as otherwise stated, that...