Patapoff v. Vollstedt's Inc.

• Decision Date: 14 March 1962
• Citation: 369 P.2d 691,230 Or. 266
• Parties: Sarah PATAPOFF, Appellant, v. VOLLSTEDT'S INC., a corporation, Crown Mills, a corporation, Centennial Mills, Inc., a corporation, and Pacific Supply Cooperative, a corporation, Respondents.
• Court: Oregon Supreme Court

Page 691

369 P.2d 691

230 Or. 266

Sarah PATAPOFF, Appellant, v. VOLLSTEDT'S INC., a corporation, Crown Mills, a corporation Centennial Mills, Inc., a corporation, and Pacific Supply Cooperative, a corporation, Respondents.

Supreme Court of Oregon, Department 2.

Argued and Submitted Feb. 9, 1962.

Decided March 14, 1962.

Gerald H. Robinson, Portland, argued the cause for appellant. With him on the briefs were Nels Peterson, Peterson, Lent & Paulson, Portland.

William F. White, Portland, argued the cause for respondents Vollstedt's Inc., and Pacific Supply Cooperative. With him on the brief were White, Sutherland & White, Portland.

James H. Clarke, Portland, argued the cause for respondents Centennial Mills, Inc., and Crown Mills. With him on the brief were Koerner, Young, McColloch & Dezendorf, James C. Dezendorf and Marshall C. Cheney, Jr., Portland.

Before McALLISTER, C. J., and WARNER, SLOAN, O'CONNELL and LUSK, JJ.

SLOAN, Justice.

This was an action for malicious prosecution. Plaintiff alleged that defendants had filed a petition in the United States District Court for the District of Oregon which had caused plaintiff to be adjudged an involuntary bankrupt and that the petition had been filed maliciously and without probable cause. At the trial the court allowed defendants' motion for a directed verdict. Plaintiff appeals. The trial court held that defendants did have probable cause to file the petition for involuntary bankruptcy. We have reached the same conclusion.

The petition in bankruptcy alleged that plaintiff was a partner with her husband in the operation of a seed business in Halsey. It also alleged that plaintiff and her husband had transferred property to certain creditors with an intent to prefer those creditors and that the business alleged to have been conducted by plaintiff and her husband was insolvent. It was the allegation that plaintiff was a partner with her husband that plaintiff alleges, in this action, was made without probable cause.

'It is a firmly established rule in this state that in actions for malicious prosecution the question of probable cause is a question of law which the judge must decide upon established or conceded facts.' Kuhnhausen v. Stadelman, 1944, 174 Or. 290, 310, 148 P.2d 239, 247, 149 P.2d 168. The evidence in this case established sufficient undisputed facts to require the court to rule on probable cause.

For several years prior to the events here in question two of defendants had received annual reports from Dun & Bradstreet in respect to the business involved herein. Each report designated the owners of the business to be plaintiff and her husband as partners and listed as assets of the business real and personal property admittedly owned by the two of them. It was the same property that plaintiff and her husband had transferred to preferred creditors. The transfers included substantially all of the property. The facts stated in the reports were made known to all of the defendants prior to the filing of the petition. They were justified in placing reliance on these reports. The extent to which these reports are used and accepted in the commercial world needs no explanation.

The event which caused the filing of the petition was a...