Kuhnhausen v. Stadelman

• Citation: 174 Or. 290,148 P.2d 239,149 P.2d 108
• Parties: KUHNHAUSEN <I>v.</I> STADELMAN
• Decision Date: 11 April 1944
• Court: Supreme Court of Oregon

174 Or. 290

148 P.2d 239

149 P.2d 108

KUHNHAUSEN

v. STADELMAN

Supreme Court of Oregon.

Argued March 1, 1944.

Reversed April 11, 1944.

Rehearing denied May 23, 1944.

Malicious prosecution

1. Complaint for malicious prosecution based on criminal proceeding before inferior tribunal stated a cause of action even though it did not disclose that the tribunal had jurisdiction or that all jurisdictional steps were taken.

Action on the case

2. The remedy by action on the case is preserved and it is employed by courts in cases where facts do not fall into the pattern of any other well-defined cause of action.

Malicious prosecution

3. The want of jurisdiction in magistrate or other judicial officer who issues process is not a bar to an action for malicious prosecution, where all the elements essential for proof of that tort are present.

Malicious prosecution

4. Mere oral request to magistrate to issue process is not the institution of prosecution, but there must be something at least approaching compliance with formality which accompanies the commencement of criminal proceedings, to form basis for action for malicious prosecution.

Malicious prosecution

5. An action for malicious prosecution will lie where prosecution was prompted by malice and without probable cause and a "colorable cause" or a "colorable invocation of jurisdiction" is shown, which means that some person apparently qualified has appeared before justice and made complaint under oath and in writing stating at least some facts which enter into and may under some conditions or in co-operation with some other unstated facts constitute a criminal offense.

Pleading

6. Where complaint for malicious prosecution alleged that defendant instituted criminal proceeding by swearing to certain information of felony before magistrate and allegation of answer that defendant signed the information was not denied by plaintiff, taking the pleadings together, there was equivalent of an averment that defendant verified the information.

Pleading

7. Allegation in answer not denied by plaintiff aided plaintiff's complaint.

Malicious prosecution

8. Complaint for malicious prosecution need not set forth the substance of verification of criminal information on which action is based.

Pleading

9. Where defendant did not file a demurrer but chose to reserve his attack on complaint until trial, the complaint would not be given a strict construction.

Malicious prosecution

10. Complaint for malicious prosecution which showed termination of criminal proceeding favorably to plaintiff was sufficient notwithstanding failure to allege that magistrate had complied with statute regarding indorsement on warrant.

Malicious prosecution

11. Proof of jurisdiction of magistrate before whom criminal proceeding was instituted is not essential to maintenance of action for malicious prosecution.

Malicious prosecution

12. Order of magistrate before whom criminal proceeding was instituted, stating that on hearing case was dismissed on ground of insufficient evidence, terminated proceedings favorably to accused and formed sufficient basis for action for malicious prosecution.

Evidence

13. Justices of the peace are state officers in judicial department of state, and municipal judge of the city of Portland is ex officio a justice of peace, and Supreme Court will take judicial knowledge of such facts.

Evidence

14. In statute requiring court to take judicial notice of succession in office and official signatures and seals of office of the "principal" officers of government, the quoted word does not have reference to the grade of officer and, in case of judges, is not intended to include only the most exalted.

Malicious prosecution

15. In action for malicious prosecution to make out defense that defendant acted on advise of counsel, it must be established that defendant made full, fair, and honest statement of all material circumstances of supposed guilt which were within his knowledge, that defendant acted in good faith on such advice, and that specific proceedings complained of were advised by counsel.

Malicious prosecution

16. In action for malicious prosecution, evidence indicating that advice of public prosecutor was not sought and acted on in

good faith by defendant in instituting criminal proceeding was sufficient and justified court in denying motion for directed verdict.

Malicious prosecution

17. In action for malicious prosecution, question of probable cause is question of law which judge must decide on established or conceded facts.

Trial

18. In action for malicious prosecution, if case cannot be decided without intervention of jury, it must go to jury with instructions from court that certain facts, if found by them to exist, do or do not constitute probable cause, and it is not competent for court to give jury definition of probable cause and instruct them to find for or against defendant according as they may determine that the facts are within or without that definition.

Trial

19. In action for malicious prosecution, instruction effect of which was to leave to jury the whole question of determining, not only the facts, but also whether the facts constituted probable cause, was erroneous and prejudicial.

Appeal and error

20. In action for malicious prosecution, error in giving instruction on the effect of which was to leave to jury the whole question of determining not only facts but also whether the facts constituted probable cause, and which tended to contradict other instructions, could be noticed by the Supreme Court even though defendant had not taken exception to the instruction.

Trial

21. A purpose of exception to instruction is to afford trial court an opportunity to correct its error.

Malicious prosecution

22. Actions for malicious prosecution are not favorites of the law.

Malicious prosecution

23. In action for malicious prosecution, defendant's requested instruction which was so framed that it made question of probable cause dependent, among other things, on whether defendant honestly believed he had given a message to plaintiff's son and honestly believed that he had consulted his attorney and consulted deputy district attorney, etc., was properly refused.

Trial

24. In action for malicious prosecution, defendant's requested instruction on burden of proof was properly refused as misleading.

Malicious prosecution

25. In action for malicious prosecution, plaintiff is only required to establish his case by preponderance of the evidence.

ON PETITION FOR REHEARING

Malicious prosecution

26. One who initiates criminal proceedings against another has "probable cause" for so doing if he reasonably believes that the person accused has acted or failed to act in a particular manner, and correctly believes that such acts or omissions constitute the offense charged, or mistakenly so believes in reliance on advice of counsel.

Malicious prosecution

27. Good faith in the accuser is not sufficient to show "probable cause" for initiating criminal proceedings against another, but it must be faith grounded on facts which in the judgment of the court would make his faith reasonable.

Malicious prosecution

28. Where tenant was forced to vacate premises for nonpayment of rent and landlord immediately discovered that certain personal property on premises was missing, an oral demand for return of the property was communicated to tenant, letters demanding return of the property were received by tenant and ignored, and after consultation with attorney landlord initiated prosecution for grand larceny against tenant about three months later, "probable cause" for initiating the prosecution existed.

Malicious prosecution

29. A landlord, who initiated grand larceny prosecution against tenant upon advice of counsel after discovery that certain personal property was missing from leased premises shortly after tenant was forced to vacate and after tenant refused to make explanation, had "probable cause" for the prosecution even though landlord mistakenly believed that tenant was guilty of grand larceny.

Bailment

30. Where possession by bailee is maintained in violation of contract, or is the result of an unfulfilled promise to return the goods, or because of a diversion of property from the special purpose for which it was received, a demand for the return of the property is not necessary to a charge of conversion against the bailee.

Malicious prosecution

31. Where landlord had reasonable ground to believe that tenant had stolen personal property which had been on leased premises in tenant's possession, and a charge of grand larceny was filed against tenant upon advice of counsel, landlord's mistake

of law in that the crime charged should have been larceny by bailee did not establish lack of "probable cause."

                  Actual belief of prosecutor as element of probable cause in
                action for malicious prosecution, note, 65 A.L.R. 225. See, also
                34 Am. Jur. 713, 733
                  14 C.J.S., Action on the Case, § 2
                  8 C.J.S., Bailment, § 31
                

Before BAILEY, Chief Justice, and BELT, ROSSMAN, KELLY, LUSK, BRAND and HAY, Associate Justices.

Appeal from Circuit Court, Multnomah County.

ARTHUR M. DIBBLE, Judge Pro Tempore.

Action for malicious prosecution by A.G. Kuhnhausen against L.M. Stadelman. Judgment for plaintiff, and defendant appeals.

REVERSED. REHEARING DENIED.

W.Y. Masters and Eugene Brookings, both of Portland, for appellant.

A.I. Bernstein, of Portland (Cookingham & Hanley, of Portland, on the brief), for respondent.

LUSK, J.

This is an action to recover damages for malicious prosecution. The plaintiff had a verdict and judgment and the defendant has appealed.

As one ground of reversal it is contended that the complaint does not state a cause of action. The defendant did not demur to the complaint, and the question was raised for the first time on the trial by objections to the evidence and, later, by motions for a nonsuit and directed verdict. The argument...