Lowe v. Skaggs Safeway Stores, Incorporated, 5300

• Decision Date: 10 March 1930
• Docket Number: 5300
• Parties: H. P. LOWE, Appellant, v. SKAGGS SAFEWAY STORES, INCORPORATED, a Corporation, and ROSALIE D. ELLIOTT, Respondents
• Court: Idaho Supreme Court

286 P. 616

49 Idaho 48

H. P. LOWE, Appellant, v. SKAGGS SAFEWAY STORES, INCORPORATED, a Corporation, and ROSALIE D. ELLIOTT, Respondents

No. 5300

Supreme Court of Idaho

March 10, 1930

MALICIOUS PROSECUTION - ACT OF AGENT - SCOPE OF AUTHORITY - MALICE-WHEN INFERRED-WANT OF PROBABLE CAUSE-BURDEN OF PROOF-EVIDENCE-MISTAKE OF MAGISTRATE-EFFECT OF.

1. In action to recover for malicious prosecution for forgery where it appeared that prosecution had been instituted chiefly through efforts of bookkeeper for defendant corporation and also of two managers of its local retail stores, nature of employment or scope of authority of defendant's employees did not give them implied authority to act for corporation in matter of that kind.

2. In action for malicious prosecution, jury is empowered to infer malice from want of probable cause.

3. Plaintiff, in action for malicious prosecution, has burden of proving both malice and want of probable cause, which are the two essential ingredients of such action.

4. In action to recover damages for malicious prosecution for forgery, where it appeared that bookkeeper and managers of local retail stores of defendant corporation had taken forged checks to magistrate, who later filled out complaint which had been signed in blank by bookkeeper and issued warrant in reliance on opinion of deputy sheriff that one of checks had been forged by plaintiff, there was no proof that bookkeeper was motivated by actual malice.

5. In action for malicious prosecution, it was proper to instruct jury that, where person in good faith makes full and truthful statement of facts to magistrate, who thereafter issues warrant or does some other unjustified act, person making statement is not liable.

6. Qualification of witness to testify as expert is question largely within discretion of trial court, whose rulings will not be reversed, unless there has been abuse of discretion.

7. In action for malicious prosecution for forgery, court did not abuse discretion in permitting deputy sheriff to testify as expert with reference to writing on check which he compared with other specimens of plaintiff's handwriting, where it was shown that witness had been officer for several years with considerable experience in examination of handwriting.

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Clinton H. Hartson, Judge.

Action for damages for malicious prosecution. Judgment for defendants. Affirmed.

Judgment affirmed. Costs to respondents. Petition for rehearing denied.

Harry Keyser and E. P. Barnes, for Appellant.

The advice of unprofessional persons, although they may be connected with the administration of the law and although they may be magistrates, is insufficient to show probable cause or excuse the want of it. (38 C. J. 431, sec. 77; Kable v. Carey, 135 Ark. 137, 12 A. L. R. 1227, and note, 204 S.W. 748.)

A corporation is liable for the wrongful acts of its servant done in the course of his employment and it makes no difference that the corporation did not authorize or even know of the servant's act; for, even if it disapproved of or forbade it, the corporation is equally liable if the act be done in the course of the servant's employment. (Redding v. South Carolina R. R. Co., 3 S.C. 1, 16 Am. Rep. 681, 686 et seq.; 14a C. J. 765-767, sec. 2829, notes 82-86; Union Naval Stores Co. v. Pugh, 156 Ala. 369, 47 So. 48; Southern Bell Tel. & Tel. Co. v. Francis, 109 Ala. 224, 55 Am. St. 930, 19 So. 1, 31 L. R. A. 193.)

While some doubt had been expressed in some of the earlier cases as to the application of the foregoing rule to cases of malicious prosecution, the modern rule is well settled that a corporation may be held liable for malicious prosecution as well as for other torts. (38 C. J. 454; 18 R. C. L. 64, sec. 45; Salt Lake City v. Hollister, 118 U.S. 256, 6 S.Ct. 1055, 30 L.Ed. 176, 178.)

The rule under which corporations are held liable for malicious prosecution where the criminal proceeding has been instituted by some servant or agent or vice-principal, frequently referred to as the alter ego of the corporation, has been variously stated but the true principle involved has probably nowhere been better stated than by the supreme court of Minnesota in a recent case referring to the earlier case of Smith v. Munch, in the following language: "The rule, laid down there, and often repeated since, is, that an employer is responsible for the torts of his employee done with a view to the furtherance of the employer's business, whether the same be done negligently or wilfully but within the scope of his agency. The fact that the employee may have exceeded his authority does not alter the rule. In later cases, it has, in other words, been said, the employer is liable if the act is committed in the course and within the scope of the agency, or, as sometimes expressed, with a view to the furtherance of the employer's business and not for a purpose personal to himself." (Larson v. Fidelity Mutual Life Assn., 71 Minn. 101, 73 N.W. 711; Slater v. Advance Thresher Co., 97 Minn. 305, 107 N.W. 133, 5 L. R. A., N. S., 598; Sina v. Carlson, 120 Minn. 283, 139 N.W. 601; Smith v. Munch, 65 Minn. 256, 68 N.W. 19; Eastman v. Leiser, 148 Minn. 96, 181 N.W. 109; Salt Lake City v. Hollister, supra; 18 R. C. L. 65, sec. 47.)

J. P. Pope and W. R. Griswold, for Respondents.

While there is some authority to the contrary, it has very generally been held that where a party in good faith makes a full and truthful statement of facts to a magistrate, and the magistrate acts thereon and issues a warrant or does some other act which the law does not justify, mistakenly believing the facts so stated to constitute an offense, the party making the statement is not liable as for a malicious prosecution. (38 C. J. 396, and cases cited; Krause v. Spiegel, 94 Cal. 370, 28 Am. St. 137, 29 P. 707; Hahn v. Schmidt, 64 Cal. 284, 30 P. 818; Smith v. Clark, 37 Utah 116, Ann. Cas. 1912B, 1366, 106 P. 653, 26 L. R. A., N. S., 953; Cook v. Proskey, 138 F. 273, 70 C. C. A. 563; Newman v. Davis, 58 Iowa 447, 10 N.W. 852; Cole v. Andrews, 74 Minn. 93, 76 N.W. 962; McNeal v. Miller, 143 Ark. 253, 220 S.W. 62.)

The general rule is that the authority conferred upon an agent to settle accounts or to collect a debt does not imply authority to cause an arrest, so as to render the principal liable in an action for malicious prosecution, in the absence of ratification or adoption of the agent's act. (Russell v. Palatine Ins. Co., 106 Miss. 290, 63 So. 644, 51 L. R. A., N. S., 471, and note, with many cases cited.)

The following cases determine the scope of authority of an agent such as a head bookkeeper, or a unit manager of a store, in malicious prosecution cases. (Govaski v. Downey, 100 Mich. 429, 59 N.W. 167; Equitable Life Assur. Co. v. Lester, (Tex. Civ. App.) 110 S.W. 499; Wolfe v. United Drug Co., 229 N.Y. 537, 128 N.E. 130; Murrey v. Kelso, 10 Wash. 47, 38 P. 879; Sweatman v. Linton, 66 Utah 208, 241 P. 309; Walker v. Culman, 9 Kan. App. 691, 59 P. 606; Staton v. Mason, 106 A.D. 26, 94 N.Y.S. 417; Springfield Engine & Threshing Co. v. Green, 25 Ill.App. 106.)

BUDGE, J. Lee and Varian, JJ., and Koelsch, D. J., concur, Givens, C. J., concurs in the conclusion.

OPINION

BUDGE, J.

Appellant brought this action against respondents Skaggs Safeway Stores, Incorporated, and Rosalie D. Elliott for damages alleged to have been sustained by the malicious prosecution of appellant upon a charge of forgery. A motion for nonsuit was granted as to respondent corporation, and the jury returned a verdict for respondent Elliott. This appeal is from the judgment entered in favor of respondents.

The material allegations of appellant's complaint, most of which are denied by the answer of respondents, are as follows:

That the defendant corporation operates three merchandising stores in Boise City, in which is maintained a general office, and that defendant Elliott is the general local secretary and bookkeeper in the employ of defendant corporation in said general office; that on or about September 23, 1927, the defendants falsely, maliciously and without any reasonable or probable cause therefor, conspired, combined and agreed to prosecute the plaintiff upon the criminal charge of forgery, and in furtherance of said plan and agreement the defendant Elliott falsely and maliciously and without any reasonable or probable cause made, signed and swore to and filed with a justice of the peace in Boise precinct a certain criminal complaint in writing, charging and accusing the plaintiff of forging and uttering a certain bank check and passing the same to defendant corporation; that the defendants caused and procured the justice of the peace to issue and grant a warrant of arrest of the plaintiff upon said charge, and by virtue of said warrant procured the plaintiff to be arrested and deprived of his liberty for about two hours; that a dismissal of said charge was moved by the prosecuting attorney on the ground that the evidence was not sufficient to justify a preliminary examination, and the said action was thereupon dismissed; that plaintiff was compelled to expend counsel fees in said action, and was specially damaged in the amount thereof, and had been injured in his person and reputation, loss of time and inconvenience, etc., to his further damage in a stated amount.

The principal questions involved arise out of the granting of the motion for nonsuit as to respondent corporation, and the giving of and refusal to give certain instructions for consideration of the jury in reaching a verdict as to respondent Elliott. The principal ground of the motion for nonsuit was that there was no substantial evidence that the corporation...