Gowin v. Altmiller, Civ. No. 77-3056.

• Court: United States District Courts. 9th Circuit. District of Idaho
• Writing for the Court: William A. Stellmon, Manderson Miles, Lewiston, Idaho, for defendants Altmiller and CaPaul
• Citation: 455 F. Supp. 743
• Parties: Paul W. GOWIN and Louise A. Gowin, Plaintiffs, v. Leroy ALTMILLER, Harry CaPaul, Carl Finke, Gerald Finke and Finke Lumber Company, Inc., Defendants.
• Docket Number: Civ. No. 77-3056.
• Decision Date: 31 May 1978

455 F. Supp. 743

Paul W. GOWIN and Louise A. Gowin, Plaintiffs,
v.
Leroy ALTMILLER, Harry CaPaul, Carl Finke, Gerald Finke and Finke Lumber Company, Inc., Defendants.

Civ. No. 77-3056.

United States District Court, D. Idaho.

May 31, 1978.

455 F. Supp. 744

COPYRIGHT MATERIAL OMITTED

455 F. Supp. 745

Leslie T. McCarthy, Lewiston, Idaho, for plaintiffs

William A. Stellmon, Manderson Miles, Lewiston, Idaho, for defendants Altmiller and CaPaul.

William J. Russell, Boise, Idaho, for defendants Finke and Finke Lumber Co., Inc.

MEMORANDUM DECISION

CALLISTER, District Judge.

The Court, having heard oral arguments and reviewed all depositions, pleadings, affidavits, answers to interrogatories and admissions, finds the following facts to be undisputed:

1. That plaintiff, Paul Gowin, was employed by defendant, Finke Lumber Company, Inc.;

2. That a dispute arose between defendant, Carl Finke, and Gowin concerning reimbursement for mileage costs, gas cans allegedly purchased by Gowin for Finke Lumber, wages for overtime, and gas charges allocated to Gowin;

3. That Gowin had in his possession a two-way radio and other tools and equipment belonging to Finke Lumber;

4. That on or about July 16, 1974, Gowin mailed a letter to Carl Finke informing him that Gowin had quit his job with Finke Lumber. The letter further outlined several grievances which Gowin wanted resolved before he would return certain items of property belonging to Finke Lumber;

5. That on or about July 17, 1974, defendant Gerald Finke took Gowin's letter and time card to defendant, Leroy Altmiller, acting Sheriff of Clearwater County;

6. That Sheriff Altmiller conferred with the County Prosecutor, Ron Schilling, on several occasions;

7. That Gowin returned some of the withheld tools to Pierce Auto Supply in Pierce, Idaho;

8. That Prosecutor Schilling, knowing of the returned tools, made the determination that probable cause existed to believe that Gowin had committed the crime of embezzlement;

9. That Sheriff Altmiller signed a complaint against Gowin;

10. That defendant, Harry CaPaul, a deputy sheriff for Clearwater County, upon information relayed to him by Sheriff Altmiller and believing that a felony had been committed, arrested Gowin without a warrant on the charge of embezzlement on July 18, 1974;

11. That, after spending the night in jail, Gowin was arraigned and released on his own recognizance on July 19, 1974;

12. That later on July 19, 1974, a warrant to search his pickup was served on Gowin by Deputy Sheriff Gene Jones;

13. That in a subsequent search the two-way radio and various tools belonging to Finke Lumber were found in and removed from Gowin's pickup;

14. That on December 30th and 31st of 1974, Gowin was tried for and convicted of the crime of embezzlement;

15. That the conviction was subsequently reversed by the Idaho Supreme Court in State v. Gowin, 97 Idaho 766, 554 P.2d 944 (1976), on the ground that the State had failed to prove Gowin's fraudulent intention beyond a reasonable doubt.

After the reversal, Gowin and his wife, Louise, filed suit against Gerald Finke, Carl Finke, and Finke Lumber Company, Inc., Sheriff Altmiller of Clearwater County, and his Deputy, CaPaul. The complaint clearly alleges two causes of action against the Finkes: malicious prosecution and abuse of process. Additionally, the complaint alleges a violation of 42 U.S.C. § 1983 against the Sheriff and his Deputy, and generally alleges that all defendants acted in concert with respect to all causes of action.

Defendants Finke move for summary judgment with respect to all three causes of action: malicious prosecution, abuse of process, and violation of 42 U.S.C. § 1983, and defendants Altmiller and CaPaul move for dismissal of the cause of action allegedly arising under 42 U.S.C. § 1983. Based upon the undisputed facts and pertinent

455 F. Supp. 746

law, it is the opinion of this Court that both motions are well taken

Claims Against Finkes:

Want of probable cause is an essential element in an action for malicious prosecution. In order to recover in this action, the plaintiffs must allege and prove (1) that there was a prosecution; (2) that it terminated in favor of the plaintiffs; (3) that the defendants were prosecutors; (4) that they were actuated by malice; (5) that there was a want of probable cause; and (6) the amount of damages that plaintiffs have sustained. Russell v. Chamberlain, 12 Idaho 299, 303, 85 P. 926 (1906); Robinson v. White, 90 Idaho 548, 414 P.2d 666 (1966); Restatement (Second) of Torts § 667.

The vast weight of authority agrees that conviction of an offense is conclusive in establishing that probable cause existed for the prosecution of that offense, thus precluding a claim of malicious prosecution. Restatement (Second) of Torts § 667 provides:

Effect of conviction or acquittal:

(1) The conviction of the accused by a magistrate or trial court, although reversed by an appellate tribunal, conclusively establishes the existence of probable cause, unless the conviction was obtained by fraud, perjury, or other corrupt means.

The Comment of Subsection (1) of § 667 provides:

(a) The rule stated in this subsection is applicable, not only when the accused has been convicted by a court consisting of a judge and jury, or by a judge sitting as the trier of fact as well as of law, but also when the conviction is by a magistrate in a case in which he has summary jurisdiction.

(b) The rule stated in this subsection applies both when the proceedings are abandoned after the conviction has been set aside by the appellate court and when after a conviction has been set aside, the accused is acquitted upon a second trial. Unless the conviction was obtained by fraud, perjury or other corrupt means, the opinion of the trier of fact expressed by its verdict under the rule that the guilt of the accused must be established beyond a reasonable doubt is regarded as conclusive evidence that the person who initiates the proceedings had reasonable grounds for doing so.

As the Wisconsin Supreme Court noted:

The question here is not whether the respondent was guilty or not guilty . ., but whether the appellant had probable cause in instituting the charges . .. The conviction of the respondent is evidence of the probable cause which existed at the time the appellant made the charges. Tarantino v. Griebel, 9 Wis.2d 37, 100 N.W.2d 350 (1960).

Plaintiffs argue in memorandum brief that the probative effect of the criminal conviction was destroyed by the reversal by the...