Page v. Rose
| Decision Date | 23 December 1975 |
| Docket Number | No. 47436,47436 |
| Citation | 1975 OK 176,546 P.2d 617 |
| Parties | Joe K. PAGE, Appellee, v. Ralph ROSE and Claudie Clubb, Appellants. |
| Court | Oklahoma Supreme Court |
Roehm A. West, Tulsa, Carol J. Russo, Legal Intern, for appellee.
Larry Derryberry, Atty. Gen., Todd Markum, Asst. Atty. Gen., Ross N. Lillard, III, Legal Intern, for appellants.
This is an appeal from judgment in favor of plaintiff-appellee, Page, in the amount of $1,500. each against defendants-appellants, Rose and Clubb, in and action for malicious prosecution.
The facts may be briefly summarized as follows:
The appellee, Page, a practicing attorney in Poteau, Oklahoma, on the night of August 3, 1973, went from his home in Poteau to his cabin on top of Kaimichi Mountain, some miles away. Somewhere nearby lies Honubby Mountain in deer country and somewhere on Honubby Mountain there is a 'deer lick.' Page testified he doesn't own the 'lick,' but puts salt there every year for the deer.
After dinner at his cabin, Page was driving to visit neighbors and had the first of five encounters that night with Rangers Clubb and Ollar. The appellant, Rose, has been a game ranger for over 21 years and Ranger Clubb for over 18 years. A defendant below, Ollar, against whom this case was dismissed after trial, has been a game ranger for some time.
On the first three encounters Page had with Rangers Clubb and Ollar on the mountain roads, the meetings were friendly and they made inquiries of where each other was going. As the two rangers were patrolling the area, they became suspicious of Page was radioed Ranger Rose at home and Rose went to the 'deer lick' on Honubby Mountain, arriving after eleven o'clock that evening. He parked his car some 40 to 70 yards from the 'lick,' turned his lights out and waited. Some 30 minutes later, Rangers Clubb and Ollar radioed Rose that Page was coming up the road.
Ranger Rose testified that Page drove by the 'lick,' stopped, backed up to it, turned his headlights off and put a spotlight on the 'lick' for a half minute or so and then put his headlights back on and started to drive up the road. Rose turned his headlights and 'red' light on and blocked the road so Page had to stop.
Ranger Rose went to Page's car and saw in the car for the first time a gun--a carbine. Rangers Clubb and Ollar arrived shortly thereafter and Page was told he was under arrest and was asked to hand over the spotlight and gun, which he refused to do.
Page did not get out of the car, but rolled up the car window and drove around Rose's car and proceeded to his cabin, either being followed or chased by the rangers. In the meantime, Rose called the Assistant District Attorney about the matter. At the cabin, Page refused to come out and surrender the light and gun, whereupon the rangers departed.
The next Monday morning Rangers Rose and Clubb went to the Assistant District Attorney's office and two misdemeanor changes were filed against Page. One was for obstructing an officer and the other for headlighting under provision of 29 O.S. § 524. This Section reads as follows:
The Statute quoted above was in effect at the time of the events recited herein.
Trial on these misdemeanor charges was held on November 2, 1973, in the District Court of LeFlore County and the defendant, Page, was found not guilty.
Thereafter, Page filed this action against the three rangers for false arrest and malicious prosecution. This case was tried to a jury in the District Court of LeFlore County and resulted in a verdict of $1,500. each against Rangers Rose and Clubb on the malicious prosecution action only. The appeal herein is from that judgment.
The general rule affecting malicious prosecution cases has been stated by this Court in Towne v. Martin et al., Okl. 196 Okl. 510, 166 P.2d 98 (1945) as follows:
'In an action for malicious prosecution, there are five essential elements, (1) the bringing of the action, (2) its successful termination in favor of the plaintiffs, (3) want of probable cause, (4) malice and (5) damages.'
The appellants' brief raises essentially three objections to this judgment.
In Proposition I and again in Proposition V, the appellants urge that the trial court committed error in permitting the Journal Entry of Judgment in the criminal prosecution case to be read to the jury. In Proposition II, the appellants assert that the defendants, being peace officers, were immune from civil action for malicious prosecution based on acts committed in the scope of their employment. In Proposition II and IV, the appellants raise the question that no sufficient proof by the plaintiff was made of lack of probable cause.
In view of the disposition we make of this appeal on the question of probable cause, we find no necessity to decide the questions raised in appellants' Propositions III and IV, the appellants raise the question the Journal Entry in the criminal case to the jury and the question of the immunity of the game rangers from actions for malicious prosecution.
With respect to appellants' Propositions III and IV, regarding the question of probable cause, we note that this Court has said that the lack of probable cause is an essential element of plaintiff's case in a malicious prosecution action. Towne v. Martin, et al, supra. This Court has also held that the burden of proving a lack of probable cause is upon the plaintiff in a malicious prosecution case. Patrick v. Wigley, Okl., 206 Okl. 194, 242 P.2d 423 (1952). We have said a number of times that probable cause constitutes a complete defense in a malicious prosecution case. Missouri, Kansas and Oklahoma Coach Lines v. Meister, Okl., 330 P.2d 579...
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