Lowther v. Metzker

• Decision Date: 01 March 1949
• Docket Number: 7455
• Citation: 69 Idaho 115,203 P.2d 604
• Parties: LOWTHER v. METZKER et ux
• Court: Idaho Supreme Court

203 P.2d 604

69 Idaho 115

LOWTHER v. METZKER et ux

No. 7455

Supreme Court of Idaho

March 1, 1949

Rehearing Denied March 21, 1949.

Rehearing Denied March 21, 1949.

Appeal from District Court, Seventh District, Canyon County; A. O Sutton, Judge.

Judgment affirmed in part and reversed in part.

Cleve Groome, of Caldwell, and Frank F. Kibler, of Nampa, for appellants.

A probable cause as used in connection with an action for malicious prosecution is that state of facts sufficiently strong in themselves to lead a man of ordinary caution to believe and entertain an honest and strong suspicion that the person is guilty of the offense with which he is charged. Stacey v. Emery, 97 U.S. 642, 24 L.Ed. 1035-1036; O'Malley-Kelley Oil & Auto Supply Co. v. Gates Oil Co. et al., 73 Colo. 140, 214 P. 398, 399; Allison v. Bryan, 50 Okl. 677, 151 P. 610 and 614; Sebastian v. Crowley, 38 Cal.App.2d 194, 101 P.2d 120, 124; Perry v. Washington Nat. Ins. Co., 14 Cal.App.2d 609, 58 P.2d 701, 705, 59 P.2d 158; Ball v. Rawles, 93 Cal. 222, 28 P. 937, 27 Am.St.Rep. 174; Johnson v. Southern Pac. Co., 157 Cal. 333, 107 P. 611; Stewart v. Sonneborn, 98 U.S. 187, 25 L.Ed. 116, 119.

The plaintiff has the burden to establish affirmatively want of probable cause for prosecution and that it was instituted for malice. Brown v. Selfridge, 224 U.S. 189, 32 S.Ct. 444, 56 L.Ed. 727; Wheeler v. Nesbitt, 24 How. 544, 16 L.Ed. 765.

The failure of a criminal suit is not evidence of want of probable cause or malice. Stewart v. Sonneborn, 98 U.S. 187, 25 L.Ed. 116, 119; Crescent City Live Stock, etc. v. Butchers' Union, etc., 120 U.S. 141, 7 S.Ct. 472, 30 L.Ed. 614; Jones Leather Co. v. Woody, 67 Okl. 184, 169 P. 878.

Logan D. Hyslop, of Nampa, for respondent.

Malice is an essential ingredient of malicious prosecution, but may, as a fact, be inferred from the absence of probable cause.

A termination of the prosecution in favor of the accused is, prima facia, evidence of lack of probable cause; and slight proof of lack of probable cause is all the law requires. Ross v. Kerr, 30 Idaho 492, 167 P. 654; Douglas v. Kenney, 40 Idaho 412, at page 423, 233 P. 874; Tucker v. Bartlett, 97 Kan. 163, 155 P. 1; McKenzie v. Canning, 42 Utah 529, 131 P. 1172.

Givens, Justice. Holden, C. J., Porter, J., and Glennon and Baker, District Judges, concur.

OPINION

Givens, Justice.

To secure one installment payment on a contract for the purchase by respondent from appellants of real and personal property, respondent, on November 13, 1943, gave appellants a note and as security therefor a chattel mortgage covering an equal one-half share of the crops growing, grown, to be sown and grown, during the year 1944 on the real estate contracted to be sold.

The note and chattel mortgage not being paid on the due date, November 5, 1944, appellant Metzker on July 31, 1945, swore to a criminal complaint in Justice's Court, Caldwell Precinct, Canyon County, charging respondent with having, wrongfully, wilfully and feloniously, disposed of appellants' one-half of the crops grown during 1944 and covered by the chattel mortgage, without appellants' consent, alleging the value thereof to be over $ 60.00.

Respondent was arrested; a preliminary hearing held and after consultation between the Justice and Deputy Prosecuting Attorney of Canyon County, respondent was discharged and said criminal complaint dismissed August 9, 1945.

The same day appellants signed a similar criminal complaint, but not alleging any value of the crops. This case was tried in Justice's Court and respondent acquitted.

Thereafter, the present action for malicious prosecution was instituted by respondent; the amended complaint alleged the above arrests and respondent's asserted damage thereby, and set forth two causes of action: the first based upon the arrest under the first criminal complaint, asking therefor $ 3,000 and the second upon the second arrest, asking therefor $ 2,000.

Appellants' motion for non suit as to appellant Effie Metzker was granted and she was thereby eliminated from further proceedings herein.

Section 17-3907 I.C.A. provides that:

"Every mortgagor of property mortgaged in pursuance of the provisions of chapter -- of title --, (Chap. 10 of Title 44, I.C.A., correlative Section 44-1017 I.C.A.) Idaho Code who, while such mortgage remains unsatisfied in whole or in part, wilfully removes from the county or counties where such mortgage is recorded, or destroys, conceals, sells or in any manner disposes of the property mortgaged, or any part thereof, without the consent of the holder of the mortgage, is guilty of larceny."

"Under the provisions of that section a person may be convicted of either petit or grand larceny. If the property disposed of is livestock, or exceeds the value of $ 60, the disposition of the same by the mortgagor, under the provisions of said sec. 7100, is grand larceny; otherwise it is petit larceny. Section 7048, Rev.St. 1887.

"It is suggested by counsel that, as the evidence shows the mortgage had received other security from the mortgagor in place of the property sold, this prosecution cannot be maintained for that reason. Counsel mistakes the purpose of said statute. The provisions of that statute are not solely for the protection of the mortgagee, but for the protection of the person to whom the mortgaged property has been sold as well, as the mortgagee may take the property wherever found, and the purchaser may be the loser. In the case at bar the mortgagee may not in the end lose a dollar, but it appears from the record that the purchaser has lost money by reason of the purchase, and the law is for his protection, as well as that of the mortgagee. The question whether any one has lost money by reason of the sale of mortgaged property is not the test as to whether a crime has been committed under the provisions of said section, and if a crime has been committed thereunder, it is not in the power of the mortgagee to condone the offense, and prevent a prosecution for it, any more than one can commit the larceny of a horse and, if caught, pay for the horse, and thus satisfy the law for the commission of the crime." State v. Barber, 15 Idaho 96, at page 98, 96 P. 116, 117.

In a malicious prosecution (civil), "* * * plaintiff must allege and prove (1) that there was a prosecution; (2) that it terminated in favor of plaintiff; (3) that the defendants were prosecutors; (4) that they were actuated by malice; (5) that there was want of probable cause; and (6) the amount of damages that plaintiff has sustained." Clark v. Alloway, 67 Idaho 32, 170 P.2d 425, at page 427.

Since want of probable cause involves a negative, slight proof is all the law requires to make a prima facie case. Douglas v. Kenney, 40 Idaho 421, at page 423, 233 P. 874; Fowler v. Ruebelmann, 65 Idaho 231, at page 236, 142 P.2d 594.

The majority rule is that an acquittal on trial of the merits is not prima facie evidence of lack of probable cause. 54 C.J.S., Malicious Prosecution, § 36, page 998; 34 Am.Jur. 740, § 58; Groda v. American Stores Co., 315 Pa. 484, 173 A. 419, 94 A.L.R. 738, 744.

Herein the only evidence in respondent's case in chief of lack of probable cause was with regard to the first cause of action, dismissal by the magistrate on motion of the prosecuting attorney and as to the second cause of action, acquittal by the jury.

Under the above rule, therefore, appellant's motion for non suit should have been granted as to the second cause of action.

However, as to the first cause of action, it would appear this court has indicated a dismissal upon preliminary examination constitutes sufficient evidence of lack of probable cause to make a prima facie case. Nettleton v. Cook, 30 Idaho 82, 163 P. 300, L.R.A.1917D, 1194; Douglas v. Kenney, supra. This likewise seems to be the general rule. 94 A.L.R. 747; 34 Am.Jur. 742, § 62, and 744, § 65.

Therefore, the motion for non suit as to the first cause of action was properly denied.

However, regardless of the termination of the criminal proceedings in favor of respondent, if it affirmatively appears he was in fact guilty of a criminal offense, he may not maintain an action of malicious prosecution in connection therewith. Nettleton v. Cook, supra; Fowler v. Ruebelmann, supra.

Likewise, if appellant made a full, fair and complete disclosure to an attorney and thereupon was advised by the attorney to institute the criminal prosecution, even though the attorney was mistaken as to the rectitude of such procedure, the action for malicious prosecution fails. Such disclosures, however, must be full and complete, and --

"* * * The mere statement of a prosecutor, in giving evidence in his defense, that he made a full and fair disclosure of all the facts to his counsel, is not conclusive." Douglas v. Kenney, supra [40 Idaho 421, 233 P. 878].

That the respondent was in fact guilty of the offense and/or appellant made a full and complete disclosure, are in the nature of affirmative defenses and the burden of proving the same was upon appellant. Douglas v. Kenney, supra.

Appellant did not specifically plead he had not consented to the disposition of the mortgaged chattels, nor did respondent testify appellant had consented.

Appellant's testimony with regard to consent or lack of consent, and what he told the attorney prior to the filing of the criminal complaint was that he received nothing in payment of the chattel mortgage; that he was not out to the ranch during 1944; that in April 1945 he was there and there was no hay, and as to disclosures:

"Q. Did you make a full and fair disclosure to Mr. Axelsen of all matters pertaining to this action. A. Yes, sir.

"Q. Then you had not received any money, told him. A. Yes, sir.

"Q. ...