Fowler v. Ruebelmann, 7126

• Decision Date: 08 October 1943
• Docket Number: 7126
• Citation: 142 P.2d 594,65 Idaho 231
• Parties: MAGGIE M. FOWLER, Respondent, v. HAROLD B. RUEBELMANN, Appellant
• Court: Idaho Supreme Court

142 P.2d 594

65 Idaho 231

MAGGIE M. FOWLER, Respondent, v. HAROLD B. RUEBELMANN, Appellant

No. 7126

Supreme Court of Idaho

October 8, 1943

Rehearing denied November 15, 1943.

1. Malicious prosecution

A complaint in malicious prosecution, alleging that there was a prosecution, that it terminated in favor of plaintiff, that defendants were prosecutors, that they were actuated by malice, that there was want of probable cause, and amount of damages sustained, was sufficient.

2. Malicious prosecution

A complaint in action for malicious prosecution must contain the material allegations, and burden is on plaintiff to establish each allegation and every essential element of his cause of action.

3. Malicious prosecution

Prosecuting attorney's determination that no just cause existed for filing of a criminal complaint against plaintiff by defendant was not equivalent to a finding of want of "probable cause" necessary to sustain action for malicious prosecution.

4. Malicious prosecution

Abandonment of prosecution by complaining witness, a discontinuance at instance of prosecuting attorneys, a dismissal by the magistrate or court without a hearing, and other similar terminations of criminal proceedings whereon an action for malicious prosecution had been based are not regarded as evidence of want of "probable cause".

5. Malicious prosecution

In action for malicious prosecution, although plaintiff has burden of establishing want of probable cause, slight proof thereof is all that the law requires to make a prima facie case.

6. Malicious prosecution

Evidence that plaintiff was notified to surrender possession of her hotel room at expiration of period for which rent was paid and entered the room after the lock had been changed thereon and continued in possession without offering to pay rent, was insufficient to establish want of "probable cause" in filing complaint against plaintiff for unlawfully obtaining possession of room with intent to defraud. (I.C.A sec. 17-3910.)

7. Malicious prosecution

"Probable cause" is the existence of such facts as would excite the belief of a reasonable mind, acting on the facts within the knowledge of the prosecutor, that the person charged was guilty of the crime for which he was prosecuted.

8. Malicious prosecution

In action for malicious prosecution, where there was no evidence of want of probable cause of defendant in filing complaint against plaintiff charging her with unlawfully taking possession of a hotel room with intent to defraud, the court should have granted a motion for nonsuit or should have directed verdict for defendant.

Rehearing denied November 15, 1943.

Appeal from the District Court of the Fifth Judicial District for Bannock County. Hon. Issac McDougall, Judge. Action for malicious prosecution. From a judgment in favor of plaintiff defendant appeals.

Reversed.

P. C. O'Malley, for appellant.

The appellant made an honest and truthful statement of facts to the magistrate. And therefore he is not liable for malicious prosecution.

"One making an honest statement of facts to the magistrate, who acts illegally, is not liable for malicious prosecution." (Lowe v. Skaggs Safeway Store, 49 Ida. 48, 285 P. 616.).

Want of probable cause is an indispensable element in actions for malicious prosecution, whether criminal or civil. (Russell v. Chamberlin, et al., 12 Ida. 299, 85 P. 926; Nettelton v. Cook, 30 Ida. 82, 165 P. 300; Campbell v. Bank and Trust Co., 30 Ida. 552, 166 P. 258; 30 Idaho 552, 166 P. 258; Ross v. Kerr, 30 Ida. 492, 167 P. 654; Lowe v. Skaggs Safeway Store, 49 Ida. 48, 285 P. 616; De Lantmenter v. Little, 32 Ida. 358, 182 P. 853.).

F. E. Tydeman, for respondent.

The rule as to probable cause is quoted in the case of De Lammentor v. Little cited in appellant's brief.

Applied to the facts in this case, it still does not justify the arrest of the respondent. There must be a crime committed before one can be justified in suspicioning someone of being guilty.

"Any motive which prompts the commencement of a criminal prosecution other than to bring the accused to justice is malicious." (De Lammenter v. Little, 32 Ida. 358, 18 R.C.L., p. 28, sec. 16; 34 Am. Jur. 729-703.).

DUNLAP, J. Holden, C.J., and Ailshie, Budge, and Givens, JJ., concur.

OPINION

DUNLAP, J.

It appears from the record that on November 22, 1942, and prior thereto, the appellant was the manager of the Dearborn Hotel located in Pocatello, Idaho, consisting of some 36 rooms. Respondent, a resident of Pocatello off and on for some 40 years had been an employee of the hotel, beginning her work there April 25, 1940, at which time she went to work for Mrs. Ruebelmann, appellant's mother, who was then in charge of the hotel. Respondent did the maid work and also cared for Mrs. Ruebelmann, and also rented rooms and continued to work in that capacity until the death of Mrs. Ruebelmann on July 20, 1942. Appellant took charge of the hotel at that time and respondent continued as his employee in the same capacity, until requested by appellant to do some additional cleaning work. Respondent was unwilling to do this work, and quit appellant's employ. Respondent, during the course of her employment in the hotel under both appellant and his mother, had received as part of her compensation her room rent, and upon the termination of that employment she continued to occupy at the hotel a room for which she paid $ 4.00 per week in advance. She remained in the hotel for about two weeks after ceasing her work, having paid rental for one week in advance, and upon the occasion of the payment of the second week's rental to and including Sunday, November 22, 1942, she was advised by appellant that he would want the room she was occupying, the following Sunday, the date to which the rent was paid and, upon this occasion, respondent advised appellant that he could not have the room as she had no place to move. The rental thus paid was for single occupancy, at the rate of $ 4.00 per week.

At the time of appellant's demand for the room, as aforesaid, respondent's son and wife had moved into and were occupying the room with her. Respondent, when advised that there would be an extra charge, stated that she would pay when she got a place to move. However, this additional room rental for the two extra occupants was never paid by respondent, or by either of the other occupants. Respondent was familiar with the rates and regulations of the hotel, and knew that there was a rate for a single person, and another or additional rate for two persons, and knew that there was no rate for occupancy of a room by three persons. The room in question was occupied by respondent, her son, and her daughter-in-law from November 15, 1942 to the day before Thanksgiving, which was November 26, 1942, or a period of about ten days. On Sunday, November 22, 1942, when respondent returned from her work in the evening, she found the door a little hard to unlock, but did get into the room with her key and found that the lock had been changed. However, nothing was said to appellant about the matter. The next evening when she came from her work, the hotel bedding was off of the bed, and they used, in lieu thereof, bedding belonging to respondent's son and his wife, and the next evening when they came home, all bedding had been taken out of the room, together with the bedstead and chairs.

On November 23, 1942, appellant swore to a criminal complaint against respondent, her son, and her daughter-in-law, before Justice of the Peace William J. Ryan, charging them with wilfully, unlawfully and forcibly taking possession of the "sleeping compartment" on November 22, 1942. A warrant was issued on this complaint and all of the persons so charged were arrested and arraigned on the charge before the justice, and pleaded not guilty on that date. They were released on their own recognizance. No trial or hearing was ever had, or testimony taken. Thereafter Mr. Tydeman, an attorney at law, talked to the prosecuting attorney of Bannock County on behalf of the defendants, whom he was then representing. As a result of that conversation, the prosecuting attorney made an investigation, but he did not talk to the complaining witness nor to either of the defendants. He did talk to the officers and Judge Ryan, and to one Ben Peterson. As a result of this investigation, the prosecuting attorney in the criminal action filed a motion to dismiss the complaint as against all of the defendants. The motion was granted by order of the justice, dated December 8, 1942.

Thereafter, and on December 12, 1942, the complaint in the present action was verified by respondent, and filed in the said District Court on January 6, 1943. Upon the trial, the jury rendered a verdict in favor of respondent and against appellant, in the sum of $ 500. Judgment was entered on this verdict, and this case is here on appeal from that judgment and from the order denying motion to set aside verdict and for new trial, which was duly and timely made. Appellant likewise made due and timely motions for nonsuit and directed verdict, which were denied.

Assigned errors are grouped as follows:

(1) That the court erred in denying motion for nonsuit, on the ground that the complaint does not state facts sufficient to constitute an action for malicious prosecution, and

(2) That the court erred in not granting appellant's motion for directed verdict and that the verdict is not supported by the evidence or the law, and in not granting appellant's motion to set aside the verdict and for judgment for appellant.

The complaint alleges that on November 23, 1942, appellant maliciously and without probable cause obtained a warrant for respondent's arrest on the charge of forcible...