Donaldson v. Miller

• Decision Date: 22 October 1937
• Docket Number: 6450
• Citation: 58 Idaho 295,72 P.2d 853
• Parties: W. D. DONALDSON, Appellant, v. HAZEL MILLER and L. L. SCHWASINGER, Respondents
• Court: Idaho Supreme Court

72 P.2d 853

58 Idaho 295

W. D. DONALDSON, Appellant, v. HAZEL MILLER and L. L. SCHWASINGER, Respondents

No. 6450

Supreme Court of Idaho

October 22, 1937

MALICIOUS PROSECUTION-PROBABLE CAUSE - QUESTION OF LAW - EVIDENCE-ADVICE OF COUNSEL.

1. Evidence in action for malicious prosecution justified order granting motion for nonsuit as to one defendant on ground that she was not connected with prosecution of action alleged to have been malicious or with the procurement of such prosecution.

2. To sustain action for malicious prosecution, it was incumbent on plaintiff to prove that there was upon part of the defendant want of probable cause for the prosecution alleged to have been malicious.

3. The advice of counsel is a complete defense to an action for malicious prosecution either of civil or criminal actions where it appears that the prosecution was instituted in reliance in good faith on such advice given after full and fair statement to attorney of all facts, and the fact that the attorney's advice was unsound or erroneous will not affect the result.

4. Where record in action for malicious prosecution disclosed that plaintiff, after acquiring strip of land by condemnation, conveyed his dominant estate and at time he cut wood on the strip obtained by condemnation owned no land adjacent to the strip, that the defendant informed prosecuting attorney of all facts, that prosecuting attorney made independent investigation, and that defendant instituted the prosecution upon advice of prosecuting attorney, motion for nonsuit of action for malicious prosecution was properly granted.

5. In an action for malicious prosecution, question of whether there was probable cause is determinable by court as matter of law unless there is some evidence in dispute which requires submission to the jury.

APPEAL from the District Court of the Seventh Judicial District, for Canyon County. Hon. Charles F. Koelsch, Presiding Judge.

Action for malicious prosecution. Judgment for defendants. Affirmed.

Affirmed. Costs awarded to respondents.

S. T Schreiber, for Appellant.

Defendant in an action for malicious prosecution who relies on advice of counsel must show that he informed counsel of all the facts within his knowledge or all the facts that he could ascertain on reasonable inquiry. (Ross v. Kerr, 30 Idaho 492, 167 P. 654; Boyer v. Bugher, 19 Wyo. 463 120 P. 171; Sutherland on Damages, sec. 1240; Hess v. Oregon German Baking Co., 31 Ore. 503, 49 P. 803.)

In an action for malicious prosecution defendant cannot shield himself under advice of counsel unless he shows that he stated the facts fully and in good faith. (Bliss v. Wyman, 7 Cal. 257; Wild v. Odell, 56 Cal. 136.)

Acting on advice of counsel is defense in malicious prosecution action only when prosecutor acts in good faith and fully discloses facts, and advice of counsel affords no defense when prosecutor institutes prosecution for mere purpose of coercing another into surrender of a right. (Kumor v. Graham, 39 N.M. 245, 44 P.2d 722; Lyons v. Kanter, 210 Ill.App. 78; affirmed in 285 Ill. 336, 120 N.E. 764.)

Donald Anderson and F. W. Jarvis, for Respondents.

To constitute a cause of action for malicious prosecution plaintiff must prove, in order to make a prima facie case, the following: (1) That there was a prosecution; (2) that it terminated in favor of plaintiff; (3) that defendant was the prosecutor; (4) that he was actuated by malice; (5) that there was a want of probable cause; (6) that plaintiff sustained damages. (Russell v. Chamberlain, 12 Idaho 299, 85 P. 926, 9 Ann. Cas. 1173; Horner v. Chamberlain, 12 Idaho 304, 85 P. 927.)

BUDGE, J. Morgan, C. J., and Holden, Ailshie, and Givens, JJ., concur.

OPINION

BUDGE, J.

--Appellant instituted this action seeking the recovery of damages for an alleged malicious prosecution.

The record discloses that appellant and his son went upon a strip of land ten feet wide bordering the Hazel Miller property, there cut into wood certain trees which had partially blown down and removed the wood therefrom. While appellant and his son were so engaged respondent Schwasinger came to them and advised them to return it immediately. The following morning appellant talked with respondent Mrs. Miller, advising her he owned the strip of land, having acquired it through condemnation, to which Mrs. Miller replied that she knew he "had a strip of land there," that she was going to have her abstract examined and would know in the evening what she was going to do. Appellant and his son were arrested that evening. A criminal complaint was filed August 30, 1935, against appellant and his son. The Criminal Docket, pertaining to the case involved, and the original papers relating to the case, admitted in evidence as exhibits, disclose the following: On September 13, 1935, the case was transferred from the justice court to the probate court. The Criminal Docket then discloses:

"September 27, 1935. Upon motion of J. E. Eberle, attorney for defendants, which motion was concurred in by prosecuting attorney, this case was continued to October 5, 1935, at 10:00 o'clock A. M., with the understanding that if defendants shall then have returned to complaining witness the wood in question this action may be dismissed. It was thereupon Ordered that hearing of this action be continued to October 5th, 1935, at 10:00 o'clock A. M.

"October 5, 1935. This day the defendants appeared in court and informed the Court that they had not returned the complaining witness wood in question and paid the Court costs as heretofore agreed. Whereupon the Court set the case down for trial October 10, 1935, at the hour of ten o'clock A. M.

"October 9, 1935. This day the defendant paid the Court costs in the amount of $ 8.80."

Plaintiff's Exhibit "2," the receipt for the court costs above referred to bears date October 9, 1935. Appellant testified that the wood was returned after the receipt was given, or after the court costs had been paid. On February 5, 1936, appellant filed a notice of motion to dismiss, setting forth the following grounds:

"That there was no probable cause for said action."

"That said action was wrongfully brought in its inception for the reason that no crime or violation contrary to the form of the statutes of the State of Idaho had been committed by the defendants or either of them." which motion was denied by the court. On February 10, 1936, an oral motion praying for an order of the court dismissing the action was heard and denied.

The case was set for trial February 19, 1936, and on this date an "amended Complaint, Criminal" was filed reciting in part:

"Personally appeared before me this 19th day of February, 1936, L. L. Schwasinger of Nampa in the County of Canyon who, being duly sworn, complains and says:

"That W. D. Donaldson, and J. L. Donaldson of Nampa on or about the 29th day of August, 1935, in the County of Canyon and State of Idaho, then and there being, did then and there commit a trespass by then and there wilfully, feloniously and unlawfully carrying away personal property belonging to another, to-wit: approximately four cords of wood the property of Hazel Miller and L. L. Schwasinger, of the value of less than $ 60.00, said wood then and there lying upon the land of said Hazel Miller and said land being inclosed by fences sufficient to show the boundaries thereof."

The case was finally tried to a jury which retired and later returned and stated "that they could not agree; that longer deliberation would not enable them, to agree," and the jury was dismissed. Upon motion of the prosecuting attorney the action was dismissed at defendant's costs March 23, 1936.

At the close of appellant's case in the instant action each of the respondents made a motion for nonsuit and each motion was granted by the court and judgment was entered accordingly, from which this appeal is taken.

Among other assignments of error appellant urges that the court erred in granting the motions for nonsuit. With respect to respondent Hazel Miller it appears beyond any question that said motion for nonsuit was properly granted since there was no evidence of any nature connecting her with the prosecution of the action alleged to have been malicious or with the procurement of such prosecution, nor is there evidence that she joined in such prosecution after it was instituted.

While there is some argument in appellant's brief to the effect that the criminal action should have been dismissed for the reason that it was agreed that it would be dismissed upon the return of the wood and payment of the costs, it appears without conflict from the record that appellant did not return the wood or pay the costs until after the time fixed therefor in the court's order.

With reference to the title to the strip of land from which the wood was cut and removed the record contains the...