Empire Gas & Fuel Co. v. Wainscott
| Decision Date | 05 June 1923 |
| Docket Number | Case Number: 11569 |
| Parties | EMPIRE GAS & FUEL CO. et al. v. WAINSCOTT. |
| Court | Oklahoma Supreme Court |
¶0 1. Malicious Prosecution--Right of Action--Termination of Prosecution by Dismissal.
The dismissal of a criminal prosecution, entered with the consent of the court on the failure of the prosecutor to produce evidence in support of the charge, is such a termination of the prosecution as will enable the accused to sue for malicious prosecution.
2. Same--Proof of Notice.
In an action for malicious prosecution, malice may be inferred from want of probable cause, and it is not necessary that the testimony should show express malice.
3. Same--Want of Probable Cause--Non-disclosure of Facts to County Attorney.
Record examined, and held, that the undisputed evidence shows a want of probable cause for the prosecution, and failure on the part of the defendants to fully and fairly communicate to the county attorney all of the material facts, relating to the guilt of the plaintiff, within their knowledge or which they could have obtained by reasonable diligence and inquiry.
4. Same--Question for Court--instructions.
In an action for malicious prosecution, where the evidence is undisputed, the question of what amounts to probable cause or the want of probable cause is one of law for the court, and where the undisputed evidence shows a want of probable cause for the prosecution, and a failure on the part of defendants to fully and fairly communicate to the county attorney all of the material facts relating to the guilt of the plaintiff, within their knowledge, or which they could have obtained by reasonable diligence and inquiry, the Supreme Court will not reverse the case for a new trial, merely because the trial court failed to instruct the jury as to specific facts and circumstances in the case, which would show probable cause, or a want of probable cause.
5. Appeal and Error--Harmless Error--Instructions.
Where it appears from the evidence that a verdict is so clearly right that had it been different the court should have set it aside, such verdict will not be disturbed merely for the reason that there is error found in the instruction.
6. Same.
Although an instruction may contain an improper statement of law, if it is clearly apparent from the whole record that no prejudice has in fact resulted therefrom, the error will not be considered.
7. Malicious Prosecution--Malice and Want of Probable Cause.
In an action for malicious prosecution, where the prosecutor before instituting the criminal proceeding obtained the advice of the county attorney, but did not fully and fairly communicate to him all of the material facts bearing on the case of which he had knowledge or could have obtained same by diligence and inquiry, acting upon the advice thus received does not establish the absence or negative a want of probable cause, and an action for malicious prosecution may be maintained.
8. Same--Excessive Recovery--Remittitur.
Evidence examined, and held, that the verdict for $ 4,500 is excessive upon the facts proven, and that the judgment should be reversed, and a new trial granted, unless a remittitur is filed for all in excess of $ 1,072.
Commissioners' Opinion, Division No. 5.
Error from District Court, Osage County; Preston A. Shinn, Judge.
Action by Reuben Wainscott against the Empire Gas & Fuel Company and G. C. Blake to recover damages for alleged malicious prosecution. Judgment for plaintiff, and defendants bring error. Modified and affirmed.
Hayes McCoy, C. C. Julien, and Warren T. Spies, for plaintiffs in error.
B. C. Trice and Templeton & Tillman (Thos. H. Owen and Suits & Hall, of counsel), for defendant in error.
¶1 This action was commenced in the district court of Osage county, Okla., by defendant in error, plaintiff below, against the plaintiffs in error, defendants below, on the 14th day of February, 1919, to recover the sum of $ 6,072, as damages for an alleged malicious prosecution. For convenience the parties will be designated as they appeared in the court below.
¶2 Plaintiff in his petition charges that on January 29, 1919, the defendant Empire Gas & Fuel Company, through G. C. Blake as its agent, and Blake acting for himself, caused plaintiff's arrest by the authorities of Osage county, on a charge of larceny of three Ford automobile casings, valued at $ 25 each, and one Ford engine valued at $ 200, the property of the defendant corporation; that plaintiff was arrested on said charge, and was imprisoned for a day, and was compelled to give bond for his release; that thereafter the prosecution was dismissed by the examining magistrate, upon motion of the county attorney; that said prosecution was instituted by the defendants maliciously, and without probable cause; that said arrest and prosecution was instituted upon the affidavit of the said G. C. Blake, acting for himself, and as the agent of said defendant corporation; that plaintiff had been damaged in the sum of $ 22 actual damages; $ 50 for loss of time from his business; $ 1,000 because of his mental and physical suffering caused by said arrest and prosecution; and $ 5,000 for injury to his business and reputation, a total of $ 6,072.
¶3 Each defendant filed a separate answer, admitting the institution of the prosecution, denying that it was instituted maliciously or without probable cause, and alleging that it was instituted in good faith, and upon the advice of the county attorney, after disclosing to him all the facts within their possession.
¶4 The answer of the Empire Gas & Fuel Company admitted that Blake was in its employ at the time of the arrest, but denied that Blake was acting as its agent in making the affidavit and filing the complaint upon which plaintiff was arrested and imprisoned.
¶5 The reply was in the nature of a general denial of new matter in the answer. There is no substantial conflict in the material testimony of the plaintiff and defendants.
¶6 The evidence discloses that the defendant Empire Gas & Fuel Company was the owner of a Ford automobile, and that some weeks prior to January 29, 1919, it had been left standing on the side of the road about 600 yards from the residence of the plaintiff, Rueben E. Wainscott, and a short distance from the homes of C. J. Bucy and C. H. Minter, neighbors of the plaintiff; that the Empire Gas & Fuel Company maintained a garage in the city of Bartlesville, Okla., and that one C. H. Dunham was the superintendent in charge of said garage for the defendant Empire Gas & Fuel Company, and G. C. Blake was the floor manager at the garage.
¶7 There is no evidence to show how the automobile came to be left on the side of the road by the Empire people, except the evidence does show that it was, at the time, being "trailed" or pulled in.
¶8 The plaintiff testified that he was arrested on January 29, 1919, by W. A. Crow, deputy sheriff; that he was taken by the officer to Pawhuska, to the county attorney's office, and afterwards to the office of G. W. Hargis, Justice of the peace, where he made bond in the sum of $ 500, was released and told to appear for trial on February 1st; that he went back to Pawhuska on January 31, and was told by the county attorney that he had found upon investigation there was not sufficient evidence, and they both went over to the office of the justice of the peace, who, on motion of the county attorney, dismissed the case, and the plaintiff was discharged.
¶9 Plaintiff further testified that on January 30, 1919, he went to the Empire Gas & Fuel Company's garage at Bartlesville, and there had a conversation with G. C. Blake, floor manager of the garage, in the presence of one Harry Fisher. He testified that in this conversation Blake stated that Mr. Bucy had reported that the plaintiff had stolen the engine out of the automobile, and also had taken some tires off of it; that he first paid no attention to it, but that later Mr. Bucy and a Mr. Minter came back and informed him and the superintendent that Wainscott was leaving the country, and made it so strong that the superintendent sent Blake over to swear out a warrant against the witness, Wainscott, for stealing the engine and casings; that in this conversation Blake stated that he was acting under the orders of the Empire Gas & Fuel Company, his employer, in swearing out the warrant.
¶10 Wainscott further testified in answer to the following question:
¶11 Corbett Cornett, county attorney of Osage county, testified that when Blake came to his office to swear out a warrant against Wainscott, he stated that an engine and casings had been stolen out of the Empire car, and that a man by the name of Mr. Bucy had informed him that Mr. Wainscott had this property in his possession; that they first talked about a search warrant and then a warrant, and that he finally advised that a warrant issue for Mr. Wainscott; that Wainscott was arrested and put under straw bond, and two or three days later, after an investigation, he dismissed the case for want of evidence.
¶12 He further testified that Mr. Blake stated that the stolen property belonged to the Empire Gas & Fuel Company, and that he was there representing the company.
¶13 Harry Fisher testified for the plaintiff that he went with the plaintiff to the garage of the Empire Gas & Fuel Company at Bartlesville; that he heard a conversation between plaintiff and G. C. Blake;...
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