First State Bank v. Denton

• Decision Date: 07 June 1921
• Docket Number: Case Number: 11182
• Citation: 82 Okla. 137,1921 OK 217,198 P. 874
• Parties: FIRST STATE BANK v. DENTON.
• Court: Oklahoma Supreme Court

1921 OK 217

198 P. 874

82 Okla. 137

FIRST STATE BANK v. DENTON.

Case Number: 11182

Supreme Court of Oklahoma

Decided: June 7, 1921

Syllabus

¶0 1. Malicious Prosecution -- Action for Damages -- Defenses -- Dismissal of Prosecution by Agreement. The general rule is, where the dismissal of a criminal prosecution has been obtained by procurement of the party prosecuted, or by compromise or agreement of the parties, then an action for malicious prosecution cannot be maintained.

2. Same--Duty to Instruct on Defense. In an action for damages for an alleged malicious prosecution, where defendant pleads as a defense that the dismissal of the criminal prosecution was obtained by the procurement of the defendant by a compromise and agreement, and there is evidence to support said plea, it is the duty of the court to instruct the jury that if they find from the evidence that said criminal prosecution had been dismissed by procurement of the defendant by way of compromise or agreement of the parties, the action for malicious prosecution cannot be maintained.

3. Same -- Probable Cause -- Question for Court -- Instruction. In an action for malicious prosecution the question of what amounts to probable cause is one of law for the court. It is therefore the duty of the court, when evidence has been introduced to prove or disprove probable cause, to submit to the jury its credibility with the instruction that it amounted to probable cause, or it did not, as the case may be.

4. Same -- Defenses -- Full Disclosure to Prosecuting Attorney -- Question for Court. In an action for malicious prosecution, where defendant pleads as a defense that it had made a full, fair, and complete statement of all the material facts within its knowledge to the county attorney and acted in good faith upon the advice of the county attorney in the institution of me criminal proceedings, and it is contended that certain facts were not disclosed by the defendant, the question of what are material facts is one of law for the court.

Stuart & Cruce and Ledbetter, Stuart & Bell, for plaintiff in error.

Claude Nowlin and McLaury, Hopps & Maupin, for defendant in error.

McNEILL, J.

¶1 This action was commenced in the district court of Oklahoma county by Alferetta Denton against the First State Bank of Oklahoma City to recover damages for an alleged malicious prosecution. The amended petition alleged that on or about the 29th day of August, 1918, the defendant maliciously, falsely, and without probable cause made and caused to be filed before the justice of the peace in Oklahoma City an affidavit and complaint duly sworn to by the defendant charging the plaintiff with having committed a certain crime, to wit, obtaining money under false pretenses; that thereupon a warrant was issued and the plaintiff was arrested, and thereafter the case was dismissed by the defendant, that the arrest and prosecution was wholly unfounded, malicious, and without just and probable cause; and prayed for damages in the sum of $ 25,000. To the amended petition the defendant answered; first, by general denial. For a second defense, defendant alleged that prior to the time of filing the complaint and the issuing of the warrant the defendant in good faith and without malice made a full, fair, and complete disclosure of all the facts to Charles Selby, the county attorney of Oklahoma county, and acted upon the advice of the county attorney, and believing there was probable cause that the defendant was guilty. As a further defense, it was alleged that the prosecution was not dismissed by the justice of the peace after hearing the evidence, but was dismissed upon agreement of plaintiff to settle said controversy and pay the money to the defendant which she had received, and upon which the complaint was filed, and there was never any adjudication by the magistrate upon the evidence that plaintiff was not guilty of the crime charged, nor any adjudication that there was not probable grounds for holding her for trial. To this answer the plaintiff filed a general denial. The case was submitted to the jury, and a verdict returned in favor of plaintiff in the sum of $ 8,000. Motion for new trial was filed, and overruled, and judgment rendered on the verdict, and an appeal regularly prosecuted to this court. For reversal of the case, the plaintiff in error assigns numerous assignments of error, among which is the giving of instructions Nos. 7, 10, and 11. We will first consider the giving of instruction No. 7. It will be unnecessary to review all of the facts in the case further than to say that the warrant was issued the last of August, and on the 18th day of September plaintiff was arrested at Kansas City, and returned to Oklahoma City, and taken before the justice of the peace upon the 20th day of September, and she entered a plea of not guilty. The case was continued from time to time, and later dismissed by the court on recommendation of the county attorney. No evidence was taken nor was the case tried upon its merits. The county attorney testified that after the defendant was arrested she informed him she desired to make no statement, but would leave that to her attorney. Thereafter her attorney approached him and started to discuss a settlement and the merits of the case. The court refused to permit the county attorney to detail the conversation between her attorney and the county attorney relating to the dismissal of the case. We think this was error, but the county attorney did testify that he told her attorney that he did not care to talk about the facts of the case, because he believed the plaintiff was guilty, but if she would make a settlement and pay the full amount of the overdraft he would give her the benefit of the doubt and dismiss the case, and that this was agreed to between himself and plaintiff's attorney. He further testified the case was continued until the plaintiff could obtain the money to make the settlement, and in a couple weeks, or about the middle of October, the justice of the peace telephoned to him and advised him that Mrs. Denton was there and had given him a check or draft for the amount of money due the bank, and the county attorney instructed the justice of the peace over the phone that he had agreed with her attorney that if a settlement was made the case should be dismissed, and the case was dismissed. While the plaintiff denied that she knew the case was being dismissed, or settled by agreement, or that she was paying the money to obtain a dismissal, we will not determine whether her evidence was sufficient to submit this question to the jury, but will content ourselves with determining whether the court properly submitted the defense of procuring the dismissal to the jury. In submitting this defense to the jury, the court gave instruction No. 7, which is as follows:

"In order to sustain an action for malicious prosecution it is a sufficient termination of a criminal proceeding out of which it arose, if there should be a dismissal of such prosecution before trial; and a judgment on the merits is not essential. However, if such dismissal should be procured by the voluntary action of the defendant therein, and upon the consideration that for such dismissal she would pay the amount the defendant claimed was going to it by the plaintiff herein, then such dismissal would not constitute such a termination of the proceedings as would show want of probable cause in the institution of such criminal action; but in such case such agreement or procurement must have been either by the plaintiff herein personally or must have been authorized by her, or if made by her attorney she must have consented thereto or acquiesced therein."

¶2 To the giving of this instruction, the defendant duly excepted, and has assigned the giving of the same as reversible error. The court in this instruction advised the jury if they believed the plaintiff procured a dismissal of the criminal prosecution by paying the money to the bank it claimed was due it, then the fact of the dismissal of the case would not be sufficient evidence to show want of probable cause in the institution of the criminal action. It would also leave the jury to infer that, although the plaintiff had procured a dismissal of the case by the settlement, still the plaintiff could maintain her action for malicious prosecution if the jury believed from the evidence that no probable cause existed for instituting the criminal proceedings. In this we think the court committed reversible error. The law is well settled that where a criminal prosecution has been dismissed by the procurement of the party prosecuted by agreement or by compromise, said party cannot thereafter maintain an action for malicious prosecution. We will quote from a few of the leading cases supporting this general principle of law. In the case of ...