Glassey v. Ramada Inn, 51455

Decision Date27 June 1980
Docket NumberNo. 51455,51455
Citation612 P.2d 1261,5 Kan.App.2d 121
PartiesDee GLASSEY, Appellant, v. RAMADA INN, Appellee.
CourtKansas Court of Appeals

Syllabus by the Court

1. To successfully maintain an action for malicious prosecution, the plaintiff must prove that the defendant initiated the criminal proceeding about which complaint is made, that the defendant in so doing acted without probable cause and with malice, or is guilty of conduct as set out in syllabus P 4, and that the proceeding terminated in favor of the plaintiff.

2. Probable cause exists for instituting a proceeding when there is reasonable ground for suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious or prudent person to believe that the party committed the act about which the complaint is made.

3. In cases for malicious prosecution, the inquiry as to want of probable cause is limited to the facts and circumstances as they appeared to defendant at the time the prosecution was commenced.

4. Notwithstanding the fact that a person who has instituted a criminal prosecution may have had probable cause for its commencement, if he afterward acquires means of ascertaining that the charge is not well founded, his failure to intervene or do what he can to sever his connection with the prosecution may render him liable for the damages resulting from the prosecution's continued maintenance.

5. Restitution does not nullify prior criminal activity and allow the guilty party to escape prosecution.

6. A person seeking to recover for false arrest or false imprisonment must prove that he was caused to be unlawfully arrested by the defendants.

7. In an action for malicious prosecution and false arrest, the record is examined and it is held : The district court did not err in granting summary judgment in favor of defendant.

James W. Dahl, Kansas City, for appellant.

Barry E. Warren, of Wallace, Saunders, Austin, Brown & Enochs, Overland Park, for appellee.

Before ABBOTT, P. J., and SWINEHART and MEYER, JJ.

ABBOTT, Judge:

This is an appeal from an order dismissing plaintiff's action for malicious prosecution and false arrest on defendant Ramada Inn's motion for summary judgment.

The facts in the case are undisputed. On approximately June 29, 1976, plaintiff, Dee Glassey, a resident of Seattle, Washington, rented a room at the Ramada Inn located in Newton, Kansas. He remained in Newton for approximately a week to ten days to obtain medical treatment for a leg injury he had sustained a year earlier. On the evening of July 9, 1976, plaintiff informed the hotel's front desk employee that he was departing the next morning and requested a statement of his bill, which amounted to $203.06. According to plaintiff, the hotel employee told him he could leave the money locked in his room with the room key and plaintiff did not realize until the next day when he was in Kansas City that he had left without paying the bill. Plaintiff admits that he represented to the hotel management that he would pay his bill before leaving and agrees that he left without paying it. No attempt was made by plaintiff to inform the Ramada Inn management of his alleged oversight. The hotel management sent a certified letter to plaintiff's Seattle address advising him that prosecution would be undertaken should he fail to pay his account.

On July 22, 1976, Max Rhodenbaugh, a representative of the Newton Ramada Inn, executed an affidavit stating that plaintiff had left the establishment without paying his bill. That same day a criminal complaint charging plaintiff with a violation of K.S.A. 36-206 was filed and a warrant issued for his arrest. On August 6, 1976, plaintiff sent a cashier's check for the full amount of his indebtedness from his Seattle bank to the Newton Ramada Inn which apparently accepted and cashed the check. The Ramada Inn management, which had changed, failed to notify the Harvey county attorney that payment had been made.

The incident precipitating this lawsuit occurred on February 22, 1977, when plaintiff, while in a Portland, Oregon, hospital recuperating from an operation on his leg, was placed under arrest by federal agents for unlawful flight to avoid prosecution on the outstanding Kansas charge. Plaintiff was transferred to a hospital equipped with a jail ward where he remained in custody for five days until the Harvey county attorney declined to prosecute the case based on the expense of extradition, plaintiff's medical condition and the newly discovered fact that plaintiff had since paid his bill in full. Plaintiff commenced this action seeking damages for malicious prosecution and false arrest on February 15, 1978. The trial court, finding no genuine issue of material fact, granted summary judgment in favor of Ramada Inn effective August 10, 1979. Plaintiff appeals.

An action for malicious prosecution may arise after a person has been charged with a crime and the criminal prosecution is terminated in favor of the defendant. The defendant, at that point, may become a plaintiff and bring an action for malicious prosecution against the person who instituted the criminal prosecution. To successfully maintain an action for malicious prosecution, the plaintiff must prove that the defendant initiated the criminal proceeding about which complaint is made, that the defendant in so doing acted without probable cause and with malice, and that the proceeding terminated in favor of the plaintiff. Braun v. Pepper, 224 Kan. 56, 578 P.2d 695 (1978). In Nelson v. Miller, 227 Kan. 271, 277, 607 P.2d 438, 443 (1980), the Kansas Supreme Court discussed proof of probable cause:

"In order to maintain an action for malicious prosecution, the plaintiff must prove that the defendant initiated the proceedings of which complaint is made without probable cause. Carnegie v. Gage Furniture, Inc., 217 Kan. 564, 538 P.2d 659 (1975); Malone v. Murphy 2 Kan. at

Page 262

Probable cause for instituting a proceeding exists when there is a reasonable ground for suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious, or prudent, man in the belief that the party committed the act of which he is complaining. Barnes v. Danner, 169 Kan. 32 at 36, 216 P.2d 804. See also for approval of the reasonable man rule, Carnegie v. Gage Furniture, Inc., 217 Kan. at 568, 538 P.2d 659. In cases for malicious prosecution, the inquiry as to want of probable cause is limited to the facts and circumstances as they appeared to defendant at the time the prosecution was commenced. PIK Civil 2d 14.31 (1978); Stohr v. Donahue, 215 Kan. 528, 527 P.2d 983 (1974); Thompson v. General Finance Co., Inc., 205 Kan. 76, Syl. P 6, 468 P.2d 269; Messinger v. Fulton, 173 Kan. 851, 857, 252 P.2d 904 (1953); A.T. & S.F. Rld. Co. v. Watson, 37 Kan. 773, Syl. P 3, 15 P. 877. If the facts are undisputed, the question of probable cause is one for the court to decide as a matter of law. Parli v. Reed, 30 Kan. 534, 2 P. 635 (1883)."

K.S.A. 36-206 states:

"That any person who shall obtain food, lodging, or other accommodation at any restaurant, hotel, boardinghouse, apartment house, or rooming house by means of any trick, deception, or false representation, statement of pretense, with intent to defraud the owner or keeper thereof, if the value of such food, lodging, services or other accommodations be of the value of fifty dollars ($50) or less, and shall fail or refuse to pay therefor, such person shall be deemed guilty of a misdemeanor, and upon the conviction thereof shall be punished by a fine not exceeding one hundred dollars ($100), or by imprisonment in the county jail not exceeding three months, or by both such fine and imprisonment; and if the value of such food, lodging, services or other accommodations be more than fifty dollars ($50) any person convicted hereunder shall be deemed guilty of a felony and shall be punished by imprisonment in the state penitentiary for a term not exceeding five (5) years."

K.S.A. 36-207, in pertinent part, discusses the proof of intent to defraud under 36-206:

"(T)hat he left the inn, hotel . . . without paying or offering to pay for such food, lodging, or other accommodation . . . shall be prima facie proof of the intent, to defraud . . . ."

As we perceive it, the thrust of plaintiff's argument is that although, he concedes, there was probable cause to arrest and initiate criminal proceedings against him before he paid his bill in full, any such probable cause evaporated with his tender and Ramada Inn's acceptance of a cashier's check for the full amount of the debt. In...

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6 cases
  • Smith v. Barber
    • United States
    • U.S. District Court — District of Kansas
    • February 13, 2004
    ...to the facts and circumstances as they appeared to defendant at the time the prosecution was commenced." Glassey v. Ramada Inn, 5 Kan.App.2d 121, 123, 612 P.2d 1261 (1980). The five student plaintiffs assert that the county defendants initiated the prosecution against them without probable ......
  • Fillmore v. Ordonez
    • United States
    • U.S. District Court — District of Kansas
    • July 29, 1993
    ...see also Rouse v. Burnham, 51 F.2d 709, 710 (10th Cir.1931); Elbrader v. Blevins, 757 F.Supp. at 1178-79; Glassey v. Ramada Inn, 5 Kan.App.2d 121, 612 P.2d 1261, 1263 (1980). Plaintiff argues that the pretrial dismissal of the charge of obstructing official duty is controlling on the issue ......
  • Demster v. City of Lenexa, Kansas
    • United States
    • U.S. District Court — District of Kansas
    • January 18, 2005
    ...to the facts and circumstances as they appeared to defendant at the time the prosecution was commenced." Glassey v. Ramada Inn, 5 Kan.App.2d 121, 123, 612 P.2d 1261 (1980). Here, defendants only dispute that plaintiffs have alleged a constitutional violation. Karen and Renee Demster allege ......
  • Riggs v. City Of Wichita
    • United States
    • U.S. District Court — District of Kansas
    • December 21, 2010
    ...1178 (D. Kan. 1991). 33.Demster v. City of Lenexa, Kan., 352 F. Supp. 2d 1165, 1175 (D. Kan. 2005) (citing Glassey v. Ramada Inn, 5 Kan. App. 2d 121, 123, 612 P.2d 1261, 1263 (1980)). 34.Plaintiff alleges that she accepted the plea agreement under duress, claiming the City of Wichita threat......
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