Koski v. Vohs

• Court: Michigan Supreme Court
• Writing for the Court: BOYLE; Levin; WILLIAMS; WILLIAMS; LEVIN
• Citation: Koski v. Vohs, 426 Mich. 424, 395 N.W.2d 226 (Mich. 1986)
• Decision Date: 10 November 1986
• Docket Number: Docket No. 75140
• Parties: Aldred E. KOSKI, Plaintiff-Appellee, v. Kenneth VOHS, Gerald Crossely, Joseph D. Whitefield, and L. Brooks Patterson, Defendants, and Danny R. Daniel, Defendant-Appellant.

Page 226

395 N.W.2d 226

426 Mich. 424

Aldred E. KOSKI, Plaintiff-Appellee, v. Kenneth VOHS, Gerald Crossely, Joseph D. Whitefield, and L Brooks Patterson, Defendants and Danny R. Daniel, Defendant-Appellant.

Docket No. 75140.

Supreme Court of Michigan.

Argued Jan. 15, 1986.

Decided Nov. 10, 1986.

James Paterson, Hazel Park, for plaintiff-appellee Aldred E. koski.

Kohl, Secrest, Wardle, Lynch, Clark and Hampton by Michael L. Updike, Farmington Hills, for defendant-appellant Danny R. Daniel.

BOYLE, Justice.

In this case we are asked to decide whether the trial court correctly determined that the plaintiff had not proven the element of lack of probable cause in this malicious prosecution suit. As the Court of Appeals noted, "[t]he basis for the trial court's ruling was a finding that as a matter of law defendants had probable cause to initiate criminal prosecution against plaintiff." We find that this determination was correctly made by the trial court as to all defendants, and we reverse that portion of the opinion of the Court of Appeals which had remanded the case for a jury determination of this question.

Basically, the record in this case reveals the following facts. Aldred Koski, as agent for Monitor Publications Ltd., entered into a contract with the Madison Heights Police Officers Association to publish a police magazine. The contract provided that advertisements would be sold to local businesses and that all advertising revenues would be deposited in the MHPOA account. Mr. Koski would then be paid a certain amount for expenses and a share of the profits (see n. 6).

Approximately two years later, several Madison Heights police officers met with the Oakland County Prosecutor's Office to discuss allegations that Mr. Koski was converting checks made out to the MHPOA. An investigation was undertaken by Mr. Danny Daniel of the prosecutor's office and charges were later authorized. At the preliminary examination, Mr. Koski was discharged when the Secretary-Treasurer of the MHPOA failed to appear to testify.

Mr. Koski began the instant suit for malicious prosecution against seven defendants: five Madison Heights police officers, the Oakland County Prosecutor, and Mr. Daniel. At trial, after the plaintiff had completed his proofs, the court granted defendants' motion for a directed verdict, finding as a matter of law that defendants had probable cause to initiate criminal prosecution against Mr. Koski. ¹

Mr. Koski appealed to the Court of Appeals which affirmed as to all defendants except Mr. Daniel. It then remanded to the trial court for a new trial as to the remaining defendant. We granted Mr. Daniel's leave to appeal.

It is well-settled in this state that, in a malicious prosecution action, absent a dispute of fact, the question of probable cause is a question of law to be determined by the court. Modla v. Miller, 344 Mich. 21, 73 N.W.2d 220 (1955); Baker v. Barach, 197 Mich. 219, 297 N.W. 472 (1941). The Court of Appeals in this case found that there was a disputed question of fact as to whether Mr. Koski had a claim of right to the funds and, on this basis, concluded that it became a question for the jury whether Mr. Daniel had probable cause to believe that the plaintiff had committed an offense. ² It was undisputed, however, that Mr. Daniel had knowledge of Mr. Koski's claim. ³ Therefore, the issue of probable cause in this case was a question of law for the judge to be determined on the basis of what Mr. Daniel ascertained during his investigation. ⁴ Prosser & Keeton, Torts (5th ed.), Sec. 119, p. 876. The record reflects that at the time Mr. Daniel was authorized to request a warrant, he had taken the following steps and developed the following facts.

Mr. Daniel met initially with Assistant Prosecutor Richard Thompson, Madison Heights Chief of Police Joseph Whitefield, MHPOA President Kenneth Vohs, and two other police officers to discuss allegations that Mr. Koski was converting funds to his own use. Mr. Daniel was advised that the contract between the MHPOA and Mr. Koski provided that all advertisement revenues were to be paid to the MHPOA and that MHPOA was then to pay Mr. Koski's expenses and a profit, if any, of seventy percent of all monies received after the first $5,000. He then interviewed Elsie Keil, secretary to the Chief of Police, who stated that Mr. Koski had picked up checks made out to the MHPOA and that she had only given them to him after Lt. Sloan, who was not authorized to release the checks, ordered her to do so. Mr. Daniel subsequently interviewed Richard Jackson of Spalding DeDecker & Associates who stated that a man described as sixty years old, small frame with gray hair, had entered his office and requested payment for an advertisement in the Monitor magazine. Mr. Jackson further stated that, when he pointed out that the invoice required checks to be made out to the MHPOA, the person identified himself as Dennis Carley and suggested that it be made out to Monitor/MHPOA. Mr. Daniel then talked to Dennis Carley, the Secretary-Treasurer of the MHPOA who stated that he routinely paid Mr. Koski from monies received and under no circumstances was Mr. Koski authorized to have any money from the advertisements without it first being deposited in the association account. Officer Carley showed Mr. Daniel the record books, and Mr. Daniel instructed him to balance all names of advertisers listed in the magazine against those who had paid the association and provide a list of those who were in the magazine but for whom there was no record of payment to the MHPOA. Mr. Daniel then received a list of eight checks.

After receiving the list, Mr. Daniel interviewed the manager of Howard Johnson's who stated that he had not paid because he never authorized the ad. Mr. Daniel then talked to Tony Brenza, the General Manager of Oakland Dodge, Inc., who produced a cancelled check for $420 made payable to the MHPOA and endorsed by Mr. Koski. Mr. Brenza stated that the check would not have been written until the requesting agency arrived to pick it up. Thereupon, Mr. Daniel talked to Edward Hellner, the comptroller, who verified his signature, and to George Hensely, the Sales Manager, who identified a picture of Mr. Koski as the man who had made the request for the check.

Mr. Daniel then obtained a search warrant authorizing a search of all bank accounts for Monitor magazine at Michigan National Bank. This search turned up the fact that the $100 check from Spalding DeDecker & Associates was not deposited in either the MHPOA account or the Monitor account, but cashed for Mr. Koski by Rick Dowell, one of the tellers.

Lieutenant Gerald Sloan was then interviewed, and he stated that he had known Mr. Koski for ten years, had filed corporation papers for Mr. Koski, and had named himself as resident agent because a permanent address was needed. Lt. Sloan further stated that he only authorized the release of checks because Mrs. Keil had read the address on the envelopes to him on the phone and they were addressed to the Monitor magazine. Mrs. Keil was again interviewed and denied that she had read the envelopes to Lieutenant Sloan, and, further, she again verified that they were addressed to the MHPOA.

Mr. Daniel next interviewed Rick Dowell, the bank teller who had cashed the Spalding DeDecker check, who stated that he thought it was unusual that Mr. Koski was cashing checks for the police department, but that he had assumed it was all right because Mr. Koski was friends with the bank manager.

Later, Mr. Daniel requested an audit of the MHPOA books and interviewed Mr. Koski informally and then formally, with Mr. Koski's attorney, in the prosecutor's office.

As this Court stated in Clanan v. Nushzno, 261 Mich. 423, 427, 246 N.W. 168 (1933):

"When the material facts are undisputed and in the opinion of the court constitute probable cause, he should direct a verdict in favor of the defendant. When the facts are in dispute, the question is for the jury with instructions as to what constitutes probable cause.

" 'The general rule of the common law, sustained by the overwhelming weight of authority, both in England and America, is that what facts, and whether particular facts, constitute probable cause is a question of law, which the judge must decide upon the facts found to exist in the particular case, and which it is error of him to submit to the decision of the jury.' 18 RCL Sec. 39, p 58,"

and, as was reiterated in Drobczyk v. Great Lakes Steel Corp., 367 Mich. 318, 325-326, 116 N.W.2d 736 (1962):

"Inasmuch as there was no dispute as to the material facts in the case the question whether plaintiff had sustained the burden of proof on the issue of want of probable cause was a question of law for the court." (Emphasis added)

Justice Levin relies on Thompson v. Price, 100 Mich. 558, 59 N.W. 253 (1894), for the proposition that the instant case should properly have been submitted to the jury to determine the question of probable cause. However, in Thompson there was a factual dispute as to whether or not the defendant had talked to the only person with knowledge of the facts. As this Court stated, in upholding a jury verdict for the plaintiff,

"[T]he testimony of the defendant is that he talked with Mr. Enos upon the subject, and that Mr. Enos told him that plaintiff did not ask for any statement of his (Enos') taxable property, and the defendant testifies that he communicated this to the prosecuting attorney.... But, as before stated, Mr. Enos testified that, according to his recollection, he never made any such statement to the defendant prior to the arrest of plaintiff." Id. at 562, 59 N.W. 253.

Because there were disputed facts in Thompson as to the probable cause issue itself, the judge was correct in allowing the jury to determine the issues. Thompson is inapposite to the instant case.

Therefore, the only determination to be made in this case is whether, where it is...