Hryciuk v. Robinson

• Decision Date: 04 June 1958
• Citation: 213 Or. 542,326 P.2d 424
• Parties: Fedor HRYCIUK, Respondent, v. H. L. ROBINSON, Defendant.
• Court: Oregon Supreme Court

Page 424

326 P.2d 424

213 Or. 542

Fedor HRYCIUK, Respondent, v. H. L. ROBINSON, Defendant.

Supreme Court of Oregon, Department 1.

Argued March 10, 1958.

Decided June 4, 1958.

Glenn R. Jack, Oregon City, and Philip A. Levin, Portland, argued the cause for appellant. With them on the brief was James O. Goodwin, Oregon City.

Berkeley Lent, Portland, argued the cause for respondent. With him on the brief were Peterson & Pozzi and Gerald H. Robinson, Portland.

Before PERRY, C. J., and ROSSMAN, LUSK and McALLISTER, JJ.

LUSK, Justice.

Plaintiff brought this action to recover damages for malicious prosecution and recovered a judgment based on the verdict of a jury in the amount of $7,500 general damages and $8,300 punitive damages. Defendant appeals.

The complaint alleges that on or about October 29, 1952, in Clackamas County, Oregon, the defendant, H. L. Robinson, falsely, maliciously and without probable cause, informed his son, L. E. Robinson, that the plaintiff had stolen certain personal property belonging to the son, and advised and procured his son to swear to a complaint before the district judge of Clackamas County accusing plaintiff of such crime, as a result of which the district judge issued a warrant for the arrest of the plaintiff, who was arrested and required to post bail in the sum of $1,500 to procure his release; that the statements and information given by the defendant to his son concerning the plaintiff were false and known by the defendant to be false at the time they were made and given. It is next alleged:

'That thereafter and on or about November 12, 1952, the above named defendant did appear before the said judge at the preliminary hearing on said charge and did give false and perjured testimony and in consequence thereof, the said judge held this plaintiff to answer said charge before the Grand Jury of said county.'

The complaint further alleged that about December 16, 1952, the grand jury returned a not true bill upon the accusation contained in the complaint referred to, and all further prosecution of the charge has been abandoned by the district attorney of the county. There are appropriate allegations of injury and damage.

The transcript of testimony discloses the following facts: The plaintiff is a landscaper and stone mason, who had done work for the defendant on property owned by him on the south shore of Lake Oswego in Clackamas County. A dispute arose over the amount of money owing to the plaintiff by the defendant for this work, and the former threatened to take action to recover what he claimed to be due. The defendant said to the plaintiff, 'If you are going to try to sue me I am going to fix you.' In February 1951, before the dispute over the plaintiff's bill arose, plaintiff had gone with defendant to look at a piece of property on the north shore of the lake, which the defendant referred to in his conversation with the plaintiff as his own. The defendant told the plaintiff that he was going to build a house on it for his son, L. E. Robinson. On this property was a large quantity of loose rock, and the defendant told the plaintiff that he could have the rock. Thereafter the plaintiff, with the help of another man, removed three truck loads of the rock and hauled it to property in Portland.

In March 1951 the son discovered that rock had been taken from the property, spoke to his father and mother about it, and, not being able to detect the supposed wrongdoer, finally made complaint to the police officer in Oswego, who advised him to swear out a John Doe warrant. This he did, and the police thereafter made efforts to solve the case, but without success. The defendant participated in the investigation. He testified: 'I went over there three, four times a week to see if I could catch anybody taking that rock.'

The plaintiff brought his threatened action against the defendant to collect the moneys owing to him, and, on the trial of that case at Oregon City in October 1952, the plaintiff, or one of his employees (it is not clear which), testified that he had taken the rock from the north side property, whereupon the defendant immediately telephoned this information to his son. The defendant knew that the John Doe warrant had been issued, and he mentioned it to his son in this telephone conversation, though he did not, according to his testimony or that of his son, urge the son to obtain a warrant for the plaintiff's arrest. The defendant testified concerning this telephone conversation as follows:

'Q. Thank you. Now, Mr. Robinson, it was you, was it not, who informed your son, L. E. Robinson, that Fedor Hryciuk had allegedly taken rock from the place on Berwick Road? A. Yes. When the evidence come out in the court in the case where he sued me for what he thought he had coming, as soon as the evidence come up, I got right up out of the--my chair and went and phoned my son.

'Q. And, what did you tell him? A. I told him that warrant we had out, the John Doe warrant that he had out for the party taking the rock off his property on--on where he was going to build had confessed right on the witness stand in this case that I was on in Oregon City.

'Q. Did you tell him who that was? A. Yes, I did.

'Q. Who did you tell him it was? A. I said it was Hryciuk. Fedor Hryciuk.'

The son, L. E. Robinson, testified:

'Q. He knew that, then, that you had the John Doe warrant outstanding at the time when he told you Hryciuk had taken the rock? A. Yes, I would assume so.

'Q. Well, isn't it true? A. Yes.

'Q. Now, did your father at that time tell you that he had ever taken Hryciuk over to that property? A. I don't think he has.

'Q. Did he ever tell you that he told Hryciuk he could take rock from that property? A. No, he never did.

'Q. Now, at the time that your father--where were you when your father told you about Hryciuk having taken this rock, that it having come out in this trial that Hryciuk was the one who had taken the rock? A. Mr. Robinson called me in Portland and told me to come out to Oregon City and he then told me then in the court house.

'Q. Told you face to face? A. Yes.'

The defendant attended the preliminary hearing, and was called as a witness, not by the state, but by the attorney for the accused. He was not asked whether he had given the plaintiff permission to take rock from the property, but was asked whether he had ever gone to the property with the plaintiff and denied that he had done so.

Two assignments of error raise closely related questions--one of pleading, the other of substantive law.

The defendant contends that the court erred in overruling a demurrer to the complaint and in failing to give the following instruction requested by the defendant:

'You are further instructed that where the result of a preliminary hearing before a Judge or Magistrate is unfavorable to the accused as in this case, and he is committed to bail or bound over to the Grand Jury, this is prima facie evidence of probable cause for the criminal action, and unless this prima facie evidence is overcome by proof that the commitment or bindover was obtained by false testimony or other improper means, it becomes conclusive and must prevent the plaintiff from prevailing in this action.

'In other words, because Fedor Hryciuk, the plaintiff, was by a Judge or Magistrate committed to bail or bound over to the Grand Jury for further investigation, you must find for the defendant, unless you further find that such commitment or bind-over was procured on false testimony or by other unlawful means.'

The ground of the demurrer is that, where the complaint in an action for malicious prosecution discloses that the plaintiff was bound over to the grand jury by a committing magistrate, it is essential that the complaint allege that the action of the magistrate was procured by fraud or perjured testimony or other improper means, and that a bare allegation that the defendant gave false and perjured testimony without more is a mere conclusion of law and insufficient as against a demurrer. The facts constituting the perjury, it is said, must be specifically alleged. With respect to the requested instruction, the defendant contends that, although the court did give an instruction substantially embodying the rule of law set forth in the request, the instruction given was not sufficient because it failed to inform the jury that a binding over or commitment by the magistrate is prima facie evidence of probable cause.

We have held that a binding over or commitment by the magistrate is not conclusive, but only prima facie, evidence of probable cause, which may be overcome by competent evidence on the trial, and that an allegation in the complaint of a want of probable cause is a sufficient averment for the admission of such proof. Hess v. Oregon German Baking Co., 31 Or. 503-506, 49 P. 803. For that reason alone the demurrer was properly overruled.

We are further of the opinion that it was not necessary for the plaintiff to prove that defendant committed perjury at the preliminary hearing in order to prevail, and therefore no error was committed in refusing the requested instruction.

It is true that in two cases we have said that, when it appears that the plaintiff in an action for malicious prosecution was bound over to the grand jury, the duty devolves upon the plaintiff to prove that such action was obtained by false testimony or other improper means. White v. Pacific Tel. & Tel. Co., 162 Or. 270, 279, 90 P.2d 193; Putnam v. Stalker, 50 Or. 210, 214, 91 P. 363. See, also, Timmins v. Hale, 122 Or. 24, 37, 256 P. 770. This rule has the support of the following decisions: Giusti v. Del. Papa, 19 R.I. 338, 33 A. 525; Penton v. Canning, 57 Wyo. 390, 118 P.2d 1002, 138 A.L.R. 300; Graham v. Buffalo General Laundries Corp., 261 N.Y. 165, 184 N.E. 746; Dawes v. Starrett, 336 Mo. 897, 82 S.W.2d 43. Price v. Cobb, 63 Ga.App. 694, 11 S.E.2d 822, sometimes cited in support of this rule, is questionable.

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