O'Malley-Kelley Oil & Auto Supply Co. v. Gates Oil Co.

• Decision Date: 02 April 1923
• Docket Number: 10233.
• Citation: 73 Colo. 140,214 P. 398
• Parties: O'MALLEY-KELLEY OIL & AUTO SUPPLY CO. v. GATES OIL CO. et al.
• Court: Colorado Supreme Court

214 P. 398

73 Colo. 140

O'MALLEY-KELLEY OIL & AUTO SUPPLY CO. v. GATES OIL CO. et al.

No. 10233.

Supreme Court of Colorado

April 2, 1923

Department 1.

Error to District Court, City and County of Denver; Julian H Moore, Judge.

Action by the O'Malley-Kelley Oil & Auto Supply Company against the Gates Oil Company and another. Judgment for defendants and plaintiff brings error.

Affirmed.

James W. Kelley, of Denver, for plaintiff in error.

Henry E. Lutz, of Denver, for defendant in error Gates Oil Co.

W. W Grant, Jr., of Denver, for defendant in error Hendrie & Bolthoff M. & S. Co.

ALLEN J.

This is an action for damages for malicious prosecution. The plaintiff is the O'Malley-Kelley Oil & Auto Supply Company, a corporation, and the defendants are the Gates Oil Company, a Wyoming corporation, and the Hendrie & Bolthoff Manufacturing & Supply Company, a Colorado corporation. At the conclusion of the evidence for plaintiff, the court granted a motion for nonsuit made on behalf of both defendants. Judgment was entered for defendants, and plaintiff brings the cause here for review.

The alleged malicious prosecution consisted of the institution of bankruptcy proceedings in the District Court of the United States for the District of Colorado, by the defendants against the plaintiff.

The trial court in the instant case granted the motion for nonsuit because it was of the opinion that 'the evidence wholly fails to disclose that there was a want of probable cause which actuated the defendants in taking the steps which they did take and which the evidence shows they took.'

It was incumbent upon the plaintiff to show, among other things, the absence of probable cause for the prosecution alleged to have been malicious. 26 Cyc. 20. If the plaintiff is unsuccessful in his attempt to establish want of probable cause, and when there is no dispute as to the facts, nor any reasonable doubt concerning the inferences to be drawn from them in respect to probable cause, it is the duty of the court to direct a nonsuit. 26 Cyc. 112; Gurley v. Tomkins, 17 Colo. 437, 30 P. 344.

If any element of proof necessary to make out the plaintiff's case is wanting, it is the duty of the court, upon motion of defendant, to enter judgment of nonsuit. Tripp v. Fiske, 4 Colo. 24.

The defendant Hendrie & Bolthoff Company apparently took no interest in the bankruptcy proceedings. It joined in the petition, it is said, not because of any investigations of its own, but because it relied on representations made by the defendant Gates Oil Company. That situation, however, is no evidence of want of probable cause. It is merely a circumstances which might make the Hendrie & Bolthoff Company a joint tort-feasor in case the Gates Company is guilty of malicious prosecution. The Gates Oil Company was the prime mover in the bankruptcy proceedings. In those proceedings the judgment was for the present plaintiff, but that fact alone is not sufficient to sustain an action for malicious prosecution. There must be other evidence of want of probable cause. 26 Cyc. 47; Newell on Malicious Prosecution, 293.

There is some dispute as to whether there is any evidence of malice on the part of the defendants, or either of them, when they instituted the bankruptcy proceedings. If there is such evidence, and we do not concede there is, it is no evidence of the want of probable cause. 26 Cyc. 22.

The plaintiff in error does not definitely state what is the evidence on which it relies to show want of probable cause. The trial court was of the opinion that not only did the plaintiff below fail to show evidence of want of probable cause, but also disclosed the existence of probable cause. The record justifies that opinion.

The petition in bankruptcy charged that the plaintiff here transferred property with intent to hinder, delay, or defraud its creditors. If in fact such allegation was not true, that of itself would not show want of probable cause, any more than a verdict and judgment for plaintiff in the former proceeding.

One of the alleged acts of bankruptcy...