Humbert v. Knutson
| Decision Date | 10 August 1960 |
| Citation | 224 Or. 133,354 P.2d 826 |
| Parties | Jack Melvin HUMBERT, Appellant, v. Harold KNUTSON and Lloyd Knutson, doing business as Knutson Towboat Co., Respondents, and F. L. Fillmore and Coos Bay Lumber Company, a corporation, Defendants. |
| Court | Oregon Supreme Court |
Bruce M. Hall and Nels Peterson, Portland, argued the cause for appellant. With Bruce M. Hall, Portland, on the briefs, were Peterson & Lent, Portland.
Wallace A. Johansen and John T. Foss, Coos Bay, argued the cause for respondents. With John T. Foss, Coos Bay, on the brief, were McKeown, Newhouse & Johansen, Coos Bay.
Before McALLISTER, C. J., and ROSSMAN, PERRY, SLOAN and HOLMAN, JJ.
This is an action for malicious prosecution brought by the plaintiff, Jack Melvin Humbert, against the defendants Knutson, doing business as Knutson Towboat Co., F. L. Fillmore and Coos Bay Lumber Company, a corporation. The defendant Fillmore was never served. The defendant Coos Bay Lumber Company was granted an involuntary nonsuit at the completion of plaintiff's case in chief. No appeal from this ruling was made. The only defendants remaining in the case are the defendants Knutson. The jury returned a verdict against these defendants in the sum of $10,000 general damages and $20,000 punitive damages. This verdict the trial judge set aside and entered a judgment for the defendants notwithstanding the verdict. From the entry of this judgment, plaintiff appeals.
Plaintiff was a young married man of good reputation, who, with his brothers, operated a small tugboat on Coos Bay. Defendants Knutson were also the operators of vessels on the bay, but on a much larger scale than plaintiff. Defendants were employed by the Coos Bay Mill Operators Log Patrol Association to salvage logs belonging to members of the association which became adrift in the waters of the bay; defendants also carried out investigations of log piracy at the request of the association. Plaintiff and his brothers were engaged in log salvage for themselves. There had been some disagreement between defendants and plaintiff concerning the right to possession of certain logs which plaintiff had collected in the bay. Defendants had inspected plaintiff's log rafts, taken logs from him, threatened him with prosecution and warned him against salvaging logs.
Plaintiff and his brothers made arrangements with the owners of property fronting on the bay to salvage logs that had beached there. Some of these logs had brands of ownership upon them. There is a dispute in the evidence as to whether the length of time they had been there and their location were such as to make them subject to salvage despite their brands.
Plaintiff proceeded to enter upon the salvage operation, during which certain logs were 'butt-ended,' a process by which the ends of the logs containing the owner's brands were cut off and a new brand inserted thereon. Part of the logs were then pulled from the beach, rafted and towed away.
Thereafter defendants received a report from an employee of one of the mills belonging to the association that there was log piracy going on at this location, and defendants sent one of their employees to investigate. After this employee reported to them, one of the defendants inspected the premises and found logs that had been 'butt-ended,' and matched to the logs the 'lily pads' or log ends thus cut off. The lily pads had brands on them. Defendants reported their findings to the association. They were directed to prosecute and as a result made arrangements to take the police to the premises the next morning. The next morning one of the defendants went to the premises with the police. The situation there was the same as it had been when it was inspected the previous day. After an inspection of the evidence that was there, upon request, one of the defendants put a lily pad in his pickup truck and directed his employee to pull the logs off the beach. It was the intention to hold the lily pads and logs as evidence.
Thereafter the police officers made a report of their findings to the district attorney, who, in turn, directed them to file charges against plaintiff and one of his brothers. As a result, one of the police who was the named defendant Fillmore, filed the complaint against plaintiff and his brother, charging them with the crime of cutting out a registered mark on forest products. Pursuant to this charge, a warrant was issued and plaintiff and his brother were arrested. They were immediately taken before a justice of the peace and made arrangements to appear a few days later. Immediately after they had left the office of the justice of the peace, they met one of the defendants, who showed them the lily pad in his truck and told them, 'We told you and warned you that we would get you sooner or later * * *.'
The plaintiff waived preliminary hearing before the committing magistrate and was bound over to the grand jury. The grand jury returned a not true bill. Neither defendant testified before the grand jury, although one was subpoenaed but not called to testify. Thereafter plaintiff filed this action.
Plaintiff contends that the trial court erred in setting aside the verdict and in entering a judgment for defendants. Plaintiff asserts he furnished sufficient proof to make a jury question on all the requisites of a case of malicious prosecution. These requisites he claims to be as follows: (1) that criminal proceedings were instituted against plaintiff; (2) that they terminated in favor of plaintiff; (3) that plaintiff suffered injury or damage; (4) that defendants acted maliciously; (5) that the proceedings were instituted at the instance of the defendants; and (6) that there was a lack of probable cause.
We believe that it is unnecessary to the disposition of the case to discuss any of those elements set out by plaintiff other than the fifth one listed above.
A person may institute a criminal proceeding, as the word 'institute' is used in a case of malicious prosecution, by either signing the charge himself or inciting or procuring another to do so. This other may be a private individual or a public officer. However, if it is a public officer and a full, complete and accurate disclosure is made to the officer and no undue influence is used upon him, thus leaving the decision to prosecute entirely to the officer's uncontrolled discretion, there is no liability on the part of the private informant if the charge proves to be false. Christy v. Rice, 152 Mich. 563, 116 N.W. 200; Bellington v. Clevenger, Mo.App., 228 S.W.2d 817; MacLaughlin v. Lehigh Valley R. R. Co., 93 N.J.L. 263, 108 A. 309; Hughes v. Van Bruggen, 44 N.M. 534, 105 P.2d 494; Atkinson v. Birmingham, 44 R.I. 123, 116 A. 205, 36 A.L.R. 366; King v. Martin, 150 Va. 122, 142 S.E. 358. This is true even though the prosecution is without probable cause and the matter was brought to the attention of the officer through malice. If pertinent information is withheld or there are misrepresentations made as to the facts, or undue influence brought to bear, there can be no intelligent exercise of the officer's discretion, and the person thus procuring the action of the officer is not insulated from responsibility. Prosser on Torts (2d ed.) 648, § 98, has this to say concerning this situation:
Comment g., entitled 'Influencing a public prosecutor,' under § 653 of the Restatement of the Law of Torts, which has to do with the elements of such a cause of action, states as follows:
...
To continue reading
Request your trial
-
Gowin v. Heider
...was a lawyer 'conscious of the materiality of the fact that the check was postdated.' On the other hand, in Humbert v. Knutson et al., 224 Or. 133, 142-143, 354 P.2d 826, we said that there was no nondisclosure in failing to tell police officers of 'the animosity, bad feeling and prior diff......
-
Rogers v. Hill
...facts he was entitled to a directed verdict because he did not initiate the prosecution actually brought. He cites Humbert v. Knutson et al., 224 Or. 133, 354 P.2d 826 (1960), for the rule that one who merely gives information on which a prosecutor makes an independent decision to charge an......
-
Gustafson v. Payless Drug Stores Northwest, Inc.
...held this evidence presented a question of fact whether Nedry caused prosecution to be instituted against plaintiff. Humbert v. Knutson, 224 Or. 133, 354 P.2d 826 (1960), held the defendant did not institute the prosecution. There, the defendant was employed by the log patrol association to......
-
Rose v. Whitbeck
...were instituted by him. The rule, enunciated by the Restatement of Torts § 653 and adopted by this court in Humbert v. Knutson et al., 224 Or. 133, 138--40, 354 P.2d 826 (1960), is that where the prosecutor, after an independent investigation and in the exercise of his independent discretio......