Douglas v. Kenney

• Decision Date: 03 February 1925
• Parties: ROSS L. DOUGLAS, Respondent, v. H. D. KENNEY, H. D. RANDALL, R. S. FOLLAND, CITIZENS ELECTRIC SUPPLY COMPANY, a Corporation, CAPITAL ELECTRIC COMPANY, a Corporation, and GENERAL ELECTRIC COMPANY, a Corporation, Appellants
• Court: Idaho Supreme Court

233 P. 874

40 Idaho 412

ROSS L. DOUGLAS, Respondent, v. H. D. KENNEY, H. D. RANDALL, R. S. FOLLAND, CITIZENS ELECTRIC SUPPLY COMPANY, a Corporation, CAPITAL ELECTRIC COMPANY, a Corporation, and GENERAL ELECTRIC COMPANY, a Corporation, Appellants

Supreme Court of Idaho

February 3, 1925

MALICIOUS PROSECUTION-PROBABLE CAUSE-BURDEN OF PROOF-ADVICE OF COUNSEL-QUESTION OF FACT-DIMINUTION OF RECORD-RULE 24-CERTIFICATION OF EXHIBITS-MOTION TO DISMISS-EVIDENCE.

1. Where appellant fails by his praecipe to require papers records and files sent up for review, he cannot, after the record has been filed in this court, in the absence of a sufficient showing be permitted by suggestion of diminution of the record, to bring up to the appellate court papers records and files which he failed to include in his original praecipe.

2. Where the transcript on appeal fails to contain a certificate in substantial conformity with Rule 24 showing that the same con- tains all of the papers, records and files used or considered by the court upon the hearing of a contested motion, the order based on such motion will not be reviewed by this court.

3. Failure to certify exhibits to the supreme court is not a ground for dismissing an appeal.

4. Evidence of conversation admitted over objection examined and held admissible as laying foundation for impeachment.

5. In an action for malicious prosecution, while the rule is well settled that the plaintiff has the burden of establishing want of probable cause, since want of probable cause involves a negative, slight proof is all that the law requires to make a prima facie case. Evidence examined and held, under above rule, to show want of probable cause sufficient to justify court in refusing to grant motion for directed verdict.

6. In an action for malicious prosecution, whether the person swearing to the criminal complaints acted upon the advice of counsel and whether he made a complete disclosure of all the facts and circumstances, held to be questions of fact for the jury.

APPEAL from the District Court of the Eleventh Judicial District for Twin Falls County. Hon. T. Bailey Lee, Judge.

Action for malicious prosecution. Judgment for plaintiff. Modified and affirmed.

Judgment as to the General Electric Company reversed and as to the other appellants affirmed.

Walters & Parry, for Appellants.

The court erred in admitting testimony relating to conversation between defendant H. D. Kenney and Miss Katherine Kline occurring during the preliminary hearing. (McCall v. Alexander, 84 S.C. 187, 65 S.E. 1021; Sloss-Sheffield Steel & Iron Co. v. Devaney, 189 Ala. 564, 66 So. 523; Carel v. Haedecke, 123 Minn. 435, 143 N.W. 1124; 18 R. C. L. 52.)

The court erred in refusing to grant defendants' motion for directed verdict made on the ground that the uncontradicted evidence showed probable cause for the institution of criminal proceedings. (Davis v. MacMillan, 142 Mich. 391, 113 Am. St. 585, 105 N.W. 862, 3 L. R. A., N. S., 928; Israel v. Brooks, 23 Ill. 575; Anderson v. Friend, 85 Ill. 135; Wright v. Fansler, 90 Ind. 492; Heldt v. Webster, 60 Tex. 207; Cole v. Curtis, 16 Minn. 182; Cullen v. Hanisch, 114 Wis. 24, 89 N.W. 900; Jones on Evidence, sec. 8; Ahrens v. Lefstein, 186 A.D. 953, 173 N.Y.S. 428; Robberson v. Gibson, 62 Okla. 306, 162 P. 1120; Talcott v. Rice, 94 Neb. 539, 143 N.W. 803; Jordan v. James etc. Co., 140 Md. 207, 117 A. 366; Keebey v. Stifft, 145 Ark. 8, 224 S.W. 396; Berger v. Wild, 130 F. 882, 66 C. C. A. 79; Woodruff v. Doss, 20 Ga.App. 639, 93 S.E. 316; Sandoz v. Veazie, 106 La. 202, 30 So. 767; McHugh v. Ridgell, 105 Neb. 212, 180 N.W. 75; Macauley v. Starr, Inc., 194 A.D. 643, 186 N.Y.S. 197; Johnson v. Southern P. Co., 157 Cal. 333, 107 P. 611.)

The court erred in refusing the defendants' motion for directed verdict made on the ground that defendants were not liable in this action by reason of the fact that defendant Kenney had fully and fairly presented the facts involved herein to his attorney and to the prosecuting attorney of Twin Falls county, and been advised that sufficient facts existed to warrant the institution of criminal proceedings. (Barton v. Woodward, 32 Idaho 375, 5 A. L. R. 1090, 182 P. 916; Jordan v. James etc. Co., supra; Price v. Morris, 122 Ark. 382, 183 S.W. 180; Christy v. Rice, 152 Mich. 563, 116 N.W. 200; Florida East Coast Ry. Co. v. Groves, 55 Fla. 436, 46 So. 294; Harris v. Woodford, 98 Mich. 147, 57 N.W. 96; Redman v. Hudson, 124 Ark. 26, 186 S.W. 312; Missouri K. & T. Ry. Co. v. Groseclose, 50 Tex. Civ. 525, 110 S.W. 447; Van Meter v. Bass, 40 Colo. 78, 90 P. 637, 18 L. R. A., N. S., 49; El Reno Gas Co. v. Spurgeon, 30 Okla. 88, 118 P. 397; King v. Apple River Power Co., 131 Wis. 575, 11 Ann. Cas. 951, 111 N.W. 668; Boyer v. Bugher, 19 Wyo. 463, 120 P. 171; Brinsley v. Schulz, 124 Wis. 426, 102 N.W. 918; Cooper v. Fleming, 114 Tenn. 40, 84 S.W. 801, 68 L. R. A. 849.)

Homer C. Mills, for Respondent.

Order sustaining motion to deny and overrule motion to quash service of summons cannot be considered for the reason that the transcript on appeal does not contain a certificate as required by rule 24 of this court. (Dudacek v. Vaught, 28 Idaho 442, 154 P. 995; Walsh v. Niess, 30 Idaho 325, 164 P. 528; Biwer v. Van Dorn, 32 Idaho 213, 179 P. 953; Spencer v. John, 33 Idaho 717, 197 P. 827; Sweaney & Smith Co. v. St. Paul Fire & Marine Ins. Co., 35 Idaho 303, 206 P. 178; McCarthy v. Warnkin, 35 Idaho 614, 207 P. 1075.)

Instructions cannot be considered, because they are not included in the reporter's transcript or in the clerk's transcript. (Swan v. Sproat, 36 Idaho 75, 209 P. 1070; Marnella v. Froman, 35 Idaho 21, 204 P. 202; Sweaney & Smith Co. v. St. Paul Fire & Marine Ins. Co., supra.)

Where appellants failed to bring up instructions given by the trial court, it is impossible for this court to consider error based upon instructions given or requested by appellants and refused. In this situation, it is presumed that the trial court correctly instructed the jury. (Swan v. Sproat, supra; Adamson v. Mattson, 32 Idaho 493, 185 P. 553; Wright v. Stewart, 32 Idaho 490, 185 P. 69.)

Discharge by committing magistrate after holding of a preliminary examination is prima facie evidence of want of probable cause. (Nettleton v. Cook, 30 Idaho 82, 87, 163 P. 300, 302, L. R. A. 1917D, 1194.)

A private corporation like an individual is liable for the acts of its agent in instituting a malicious prosecution, if the same were done while acting within the scope of his authority. (Empire Gas & Fuel Co. v. Wainscott, 91 Okla. 66, 216 P. 141.)

Whether Kenney acted upon advice of counsel and whether he made a complete disclosure of all the facts and circumstances are questions of fact for the jury. (Kitchen v. Rosenfeld, 44 R. I. 399, 117 A. 537; Fox v. Smith, 25 R. I. 255, 55 A. 698; 26 Cyc. 30, 31; Cornner v. Hamilton, 62 Mont. 239, 204 P. 489.)

What he stated should be proved and the jurors should decide whether or not the statement made was a full and fair one. (McLeod v. McLeod, 73 Ala. 42.)

The order denying motion to quash is not reviewable. (Hardy v. Butler, 39 Idaho 99, 226 P. 669, and authorities cited.)

Testimony of conversation with Kenney at preliminary hearing was admissible. (Monske v. Klee, 38 Idaho 314, 221 P. 152.)

Slight proof may be sufficient to establish want of probable cause on account of difficulty of establishing it. (Pierce Oil Corp. v. Mitchell, 99 Okla. 148, 225 P. 937.)

BUDGE, J. William A. Lee, C. J., Wm. E. Lee and Givens, JJ., concur.

OPINION

BUDGE, J.

This action was brought to recover damages for malicious prosecution. The complaint contains five causes of action based upon the filing of five criminal complaints against respondent, charging him with the embezzlement of various sums in excess of $ 60. It is alleged that each criminal complaint was sworn to by appellant Kenney at the instigation, request and with the connivance and agreement of appellants Randall and Folland, officers, agents and employees of the three defendant corporations; that the same was done maliciously and without probable cause; that respondent was required to give bonds, employ counsel and appear before the court in which the criminal complaints were filed, and that after preliminary examination in each case respondent was discharged out of custody and was fully discharged and acquitted and the prosecutions dismissed. On each cause of action respondent prayed judgment for $ 15,000 general damages and $ 10,000 punitive damages, and sought to recover attorney's fees which he had expended in defending the various prosecutions, amounting in the aggregate to $ 1,050.

Appellants General Electric Company, Capital Electric Company, Citizens Electric Supply Company and H. D. Kenney appeared specially and moved to quash the service of summons upon them. Respondent later moved that the motion to quash the service of summons be denied and overruled. The court thereupon made its order sustaining respondent's motion and denied the motion to quash the service of summons and the movant appellants were given twenty days in which to answer. Thereupon a joint answer was filed by H. D. Kenney, Citizens Electric Supply Company and Capital Electric Company. A demurrer was interposed by appellant Folland but the record does not disclose the ruling thereon. However, his answer was later filed. No answer or appearance on the part of General Electric Company or H. D. Randall appears in the record, except that upon the trial the answer of the other defendants was adopted by the General Electric Company. The answers filed constitute a denial of the material allegations of the complaint and set forth as additional defenses that examination, investigation and audit of the...