Nettleton v. Cook

• Citation: 30 Idaho 82,163 P. 300
• Parties: V. F. NETTLETON, Respondent, v. J. F. COOK, as Administrator of the Estate of ROBERT E. NEITZEL, Deceased, Appellant
• Decision Date: 27 January 1917
• Court: United States State Supreme Court of Idaho

163 P. 300

30 Idaho 82

V. F. NETTLETON, Respondent, v. J. F. COOK, as Administrator of the Estate of ROBERT E. NEITZEL, Deceased, Appellant

Supreme Court of Idaho

January 27, 1917

MALICIOUS PROSECUTION - PROBABLE CAUSE - PROSECUTION UNDER WRONG STATUTE AND DISCHARGE-ACTUAL COMMISSION OF CRIMINAL OFFENSE.

1. In an action for malicious prosecution, probable cause, as a basis for instituting the prosecution complained of, is the existence of such facts or circumstances as would excite the belief in a reasonable person, acting on the facts within the knowledge of the prosecutor, that the one charged was guilty of the crime for which he was prosecuted.

2. Where plaintiff in an action for malicious prosecution shows that he was discharged by the committing magistrate after the holding of a preliminary examination, such discharge is prima facie evidence of want of probable cause but is not conclusive; and if it appears affirmatively from evidence introduced upon the trial that he was in fact guilty of an indictable misdemeanor, although not the one for which he was attempted to be held for trial, but of an indictable misdemeanor which was so closely akin thereto that the county attorney in drafting the criminal complaint inadvertently charged the defendant under the wrong section of the statute want of probable cause is thereby rebutted, and the prosecutor cannot be held in damages.

3. In an action for malicious prosecution, the fact that the plaintiff was not charged in the prosecution complained of under the proper statute with the commission of a criminal offense, is not evidence of bad faith or malice on the part of the prosecutor, if the latter had reason to believe the accused guilty of a crime, and such belief was based either upon personal knowledge or information received from others upon which he relied in good faith, and such facts had been communicated to the county attorney.

4. Held, under the facts of this case, that as it affirmatively appears from the record, and from respondent's own testimony, that he was guilty of a criminal offense against the laws of the state, but through inadvertence was charged under the wrong statute without any fault on the part of Neitzel, he cannot be permitted to maintain this action for malicious prosecution.

[As to acquittal in criminal prosecution as evidence, in action for malicious prosecution, of want of probable cause, see note in Ann.Cas. 1916E, 376]

APPEAL from the District Court of the Third Judicial District, for Owyhee County. Hon. Charles P. McCarthy, Judge.

Action to recover damages for malicious prosecution. Motion for nonsuit denied. Judgment for plaintiff. Reversed.

Reversed and remanded, with instructions. Costs awarded appellant.

Barber & Davison, for Appellant.

If the appellant had reasonable cause to believe, and did believe, that respondent had violated the law in the destruction of or interference with the headgate of the Murphy Land & Irrigation Co., notwithstanding the action of the probate court in refusing to hold respondent to the district court, the evidence did not sustain the verdict, and did not entitle respondent to recover any sum in this cause. (Russell v. Chamberlain, 12 Idaho 299, 303, 9 Ann. Cas. 1173, 85 P. 926; Potter v. Seattle, 8 Cal. 217, 221; Grant v. Moore, 29 Cal. 644, 656; Anderson v. Coleman, 53 Cal. 188; Vesper v. Crane Co., 165 Cal. 36, 130 P. 876, L. R. A. 1915A, 541.)

Appellant had taken every reasonable precaution and had conducted himself as a reasonable and cautious man would conduct himself by laying before the public prosecutor, a constituted authority, the facts as given him, bringing himself clearly within the authorities defining probable cause. (26 Cyc. 24, and cases cited; Smith v. Liverpool etc. Ins. Co., 107 Cal. 432, 433, 40 P. 540; Davis v. Pacific Tel. & Tel. Co., 127 Cal. 312, 57 P. 764, 59 P. 698.)

And the question does not turn upon the actual innocence or guilt of the accused, but upon the prosecutor's belief at the time upon reasonable grounds. (Burlingame v. Burlingame, 8 Cow. (N. Y.) 141; French v. Smith, 4 Vt. 363, 24 Am. Dec. 616; Foshay v. Ferguson, 2 Denio (N. Y.), 617.)

If one submits his case to counsel and in good faith receives advice justifying a prosecution, and acting on that advice institutes the prosecution, he is entitled to immunity from damages. (26 Cyc. 16, 32; Sandell v. Sherman, 107 Cal. 391, 40 P. 493; Struby etc. Mercantile Co. v. Kyes, 9 Colo. App. 190, 48, P. 663; Staunton v. Goshorn, 94 F. 52, 36 C. C. A. 75; Johnson v. Southern P. Co., 157 Cal. 333, 107 P. 611.)

Perky & Crow, for Respondent.

No one has the right to cause the arrest of another as an experiment, and an arrest under such circumstances is malicious. (Johnson v. Ebberts, 11 F. 129, 6 Saw. 538.)

"Malice may be presumed not only from the total absence of probable cause, but also from gross and culpable negligence in omitting to make suitable inquiries." (26 Cyc. 51.)

"To justify by advice of counsel defendant must show that he or his prosecuting agent truthfully and correctly, fully and fairly and in good faith stated to such counsel all the facts bearing upon the guilt or innocence of the accused." (26 Cyc. 34.)

Before the prosecutor can rely upon the advice of counsel as a defense, it must be shown not only that he fully and fairly stated all of the facts in his possession concerning the offense, but he must have stated all facts of which he had been put upon inquiry. (Flikkie v. Oberson, 82 Minn. 82, 84 N.W. 651; Atchison, T. & S. F. R. Co. v. Brown, 57 Kan. 785, 48 P. 31; Whitehead v. Jessup, 2 Colo. App. 76, 29 P. 916; Jeremy v. St. Paul Boom Co., 84 Minn. 516, 88 N.W. 13; Dawson v. Schloss, 93 Cal. 194, 29 P. 31; Steed v. Knowles, 79 Ala. 446; Norrell v. Vogel, 39 Minn. 107, 38 N.W. 705; Willard v. Holmes etc., 2 Misc. 303, 21 N.Y.S. 998; Leahey v. March, 155 Pa. 458, 26 A. 701; Barhight v. Tammany, 158 Pa. 545, 38 Am. St. 853, 28 A. 135; Flora v. Russell, 138 Ind. 153, 37 N.E. 593; Cointement v. Cropper, 41 La. Ann. 303, 305, 6 So. 127.)

BUDGE, C. J. Morgan and Rice, JJ., concur.

OPINION

BUDGE, C. J.

This is an action to recover damages for an alleged malicious prosecution. The material facts out of which this litigation arose, briefly stated, are as follows; several years prior to the commencement of this action the Murphy Land & Irrigation Company, Limited (which will hereafter be referred to as the "Water Company"), constructed a dam across Sinker Creek in Owyhee county, for the purpose of impounding the natural flow of the waters of that stream. Prior to the construction of this dam a portion of the waters of Sinker Creek had been appropriated and used by settlers along the stream. For the purpose of determining the relative priorities of the various claimants an action was instituted in the district court for Owyhee county by Matthew Joyce et al. against the Water Company, which was pending at the time the controversy herein related occurred. During the pendency of this suit the Water Company had agreed with the other claimants to turn into the bed of the stream below the dam the same quantity of water that was entering the reservoir by means of the channel of Sinker Creek.

The respondent in this action was in charge of the Joyce ranch, which was among the other claimants above mentioned. Neitzel at the time of the controversy was, and had been for some time prior thereto, the secretary and treasurer of the Water Company, and was also general manager of the dam and reservoir. An employee of the Water Company, Martin M. Welch, was in immediate charge of the dam and reservoir and controlled the various headgates and canals.

A dispute arose between respondent and Welch in regard to the amount of water that was being released by the Water Company under its agreement. The respondent contending that something over 600 miner's inches was running into the reservoir and that no such quantity was being permitted to flow out of the reservoir into the creek below. And he thereupon took possession of the dam and turned a considerable quantity of water into the creek, so that it would proceed to the Joyce ranch. There is a decided conflict in the evidence as to whether or not Welch objected to respondent's conduct in increasing the flow of water into the creek. However, there is no conflict in the evidence that later Welch readjusted the gate and placed a chain and padlock upon it, which the respondent, after a more or less serious controversy with Welch, broke with an iron bar, raised the gates and permitted a large quantity of water to escape from the reservoir into the creek. Nor is it disputed that respondent stood guard over the dam until far into the succeeding night and would not permit Welch to adjust the gates until some temporarily satisfactory arrangement was made.

After Neitzel stated these facts, communicated to him by Welch, to the county attorney of Owyhee county, the latter informed him that it would be necessary to determine whether or not a criminal action would lie, and for that purpose he desired time to look into the question. Shortly thereafter he telephoned Neitzel and informed him in effect that the respondent was guilty of an indictable misdemeanor. It was thereupon arranged by Neitzel and the county attorney that a criminal complaint be sworn to by the county attorney, which was done, and a warrant was thereupon issued out of the probate court and later served upon the respondent, who subsequent thereto appeared in said court, where at the date fixed a preliminary examination was held, at which time the depositions of the witnesses offered on behalf of the state were taken. The probate court, sitting as a committing magistrate, after hearing all the testimony...