Patton v. Guyer

• Decision Date: 08 April 1971
• Docket Number: 479-69.,No. 478-69,478-69
• Citation: 443 F.2d 79
• Parties: Gary D. PATTON, Plaintiff-Appellee Cross-Appellant, v. Albert E. GUYER, Martha Frances Guyer, Howard Fisher, d/b/a Fisher's I.G.A., Defendants-Appellants Cross-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

443 F.2d 79 (1971)

Gary D. PATTON, Plaintiff-Appellee Cross-Appellant, v. Albert E. GUYER, Martha Frances Guyer, Howard Fisher, d/b/a Fisher's I.G.A., Defendants-Appellants Cross-Appellees.

Nos. 478-69, 479-69.

United States Court of Appeals, Tenth Circuit.

April 8, 1971.

COPYRIGHT MATERIAL OMITTED

Bradley Post, Wichita, Kan. (Michaud & Cranmer, Wichita, Kan., on the brief), for plaintiff-appellee-cross-appellant.

Ward E. Loyd and Daniel J. High, Garden City, Kan. (Calihan, Green, Calihan & High, Garden City, Kan., on the brief), for defendants-appellants-cross-appellees.

Before HILL and SETH, Circuit Judges, and DOYLE, District Judge.

WILLIAM E. DOYLE, District Judge.

This is an appeal from a judgment entered on a jury verdict against the defendants-appellants (in the amount of $11,000.00). The same jury also returned a verdict against a co-defendant, Ernest Craig, Jr., the then Sheriff of Kearny County, Kansas, in a lesser amount ($500.00 actual and $500.00 exemplary). Although defendant Craig has not appealed, the validity of the award against him is before us in relation to the propriety of "several" rather than "joint" verdicts under the circumstances presented. The case which commenced as false imprisonment was tried and submitted as a malicious prosecution case. It stemmed from the confinement of an accused on a counterfeit check charge.

The plaintiff-appellee was arrested on or about December 7, 1966, in Scotts-bluff, Nebraska. He signed an extradition waiver and was returned to Lakin, Kansas, where he was confined for a period of some 32 days. A complaint by the defendant, Mr. Guyer, led to the issuance of a warrant for plaintiff's arrest. The incident had its inception when a fictitious check in the amount of $36.43 was presented to Mrs. Guyer, at the grocery store operated by her and her husband in partnership with defendant Fisher (who was not present at the time). The date of this was approximately November 26, 1966, although the check was dated November 22, 1966. This check was made payable to one Tommy Banks and had been run through a check protector. It was a counter check in which one R. J. McComer appeared as the drawer. It was drawn on the Garden National Bank of Garden City, Kansas. The named payee on this check, one Tommy Banks, presented it at the Guyer store, but Mrs. Guyer mistakenly identified the plaintiff as the culprit. Four days previously, on November 22, 1966, plaintiff, who had been selling magazine subscriptions in Lakin, Kansas, had presented to Mrs. Guyer a genuine check in the amount of $4.00. This had been written by a Lakin resident on the same day (November 22).

After the fictitious check was returned marked "No account," Albert Guyer took it to the Sheriff who, after talking to the County Attorney, submitted a complaint to Albert Guyer which was signed and filed. Mr. Guyer said that the complaint was presented to him in blank. However, he also stated that he knew when he signed the complaint that someone would be arrested, although he did not know who it was. He had not previously seen the plaintiff. The Sheriff interviewed Mrs. Guyer who told him that the man who had presented the fictitious check was the same one for whom she had previously cashed the $4.00 check. Subsequently, the plaintiff, after having been arrested in Scottsbluff, Nebraska, on the mentioned warrant, was returned to Lakin, Kansas, where pictures were taken of him and shown to Mrs. Guyer. She said that she was unable to identify him from the pictures. However, she went to the jail and saw him through a one-way glass. She testified at the trial that she told the Sheriff that while it looked like the man she could not positively identify plaintiff as the man. Sheriff Craig gave a contrary version. His testimony was that she had positively identified Patton. But that same day Mrs. Guyer met a friend at the bank and told the friend that she was uncertain and unable to make the identification.

A handwriting expert from the Kansas Bureau of Investigation determined initially that the handwriting on the $4.00 check was the same as that of the "Banks" check. It was not until some weeks later that an F.B.I. handwriting analysis revealed that the plaintiff had not endorsed the "Banks" check. By this time it became clear that there was indeed a Tommy Banks and that he rather than plaintiff had endorsed and passed the fictitious check. The true facts came through on a Thursday, but the authorities nevertheless kept plaintiff in confinement until the following Monday so as to allow them to report the developments to Mrs. Guyer.

The evidence at the trial also established that the plaintiff was 6' in height, whereas Tommy Banks was 5'9" and had tattoos on his arms.

During the period of plaintiff's confinement, Sheriff Craig received fliers pertaining to Tommy Banks. These came in in Mid-December. On January 6, 1969, the Kansas Bureau of Investigation handwriting analyst reported to the Sheriff that the F.B.I. had identified one of Banks' accomplices who had admitted to being in the Lakin area at the times in question, passing checks with a check protector. At this time, they also informed the Sheriff about the handwriting analysis showing that Banks had endorsed the check in question. At that point it became very clear that they were holding the wrong man.

Certain facts noted by the trial judge in his charge as stipulated and uncontested are summarized below.¹

The defendant's suspicion was aroused from the fact that the plaintiff had made misstatements concerning his personal life to the drawer of the $4.00 check, Mrs. Barchet in the course of selling the magazine subscription.

The original complaint which described false imprisonment claims was filed on February 17, 1967. A motion to amend adding the second claim, that in malicious prosecution, was tendered March 18, 1968. The order authorizing the amendment was entered on May 23, 1968. The trial commenced some seven and one-half months later, on March 17, 1969.

Numerous alleged errors are urged. These revolve around the following matters.

1. The rulings of the trial judge with respect to the defense of disclosure to legal authorities, including the court's instruction on this subject.

2. The court's refusal to conclude as a matter of law the existence of probable cause, it being the position of defendants that probable cause existed as a matter of law. Complaint is also made in respect to the instruction given on this issue of probable cause.

3. The alleged insufficiency of the evidence to establish malice on the part of the defendants.

4. The alleged error in allowing the plaintiff to amend his complaint by adding a count in malicious prosecution to that which sounded in false imprisonment.

5. The alleged defective verdicts which, it is said, had the effect of apportioning damages as between joint tortfeasors.

6. The contention that the defendant Fisher being an inactive nonresident partner was not liable for any malicious prosecution which may have been perpetrated by the Guyers.

7. Miscellaneous contentions, excessiveness of damages and other instructions.

I. DISCLOSURE TO LEGAL AUTHORITIES

The district court charge told the jury that the advice of the County Attorney as to the institution of a criminal proceeding sought and acted upon in good faith was a complete defense when all of the facts known to the defendant and all of the facts which he could learn by reasonable effort have been fully and truthfully given to such official.² The part of this that the appellants object to is that which charges defendant with knowledge of "facts which he could learn by reasonable effort."

It is said that this doctrine has been repudiated by the Supreme Court of Kansas. A lengthy and somewhat complex derivation of the Kansas Supreme Court decisions is presented starting with the case of Haines v. Atchison, T. & S. F. Railway Co., 108 Kan. 360, 195 P. 592, including Rowe v. Glen Elder State Bank, 1931, 132 Kan. 709, 297 P. 703, wherein it was stated:

There is a similar line of cases where the prosecuting witness sought the advice of the county attorney instead of private counsel, and in the opinion and concurring opinions in the case of Haines v. Atchison, T. & S. F. Railway Co., 108 Kan. 360, 195 P. 592, 597, it was held, where the complaining witness has truthfully laid before the county attorney all the facts of which he has knowledge and the county attorney directs that a prosecution be instituted, the complaining witness will not be liable in damages. It was further held that "there is no authoritative declaration of this court approving the `diligent effort\' doctrine."

The Supreme Court of Kansas concluded in Rowe that inasmuch as the jury had answered an interrogatory that the defendant had fully and truthfully stated all facts to private attorneys and had been advised to bring the criminal action that he was entitled to a judgment notwithstanding the verdict. Other cases relied on are Messinger v. Fulton, 1953, 173 Kan. 851, 252 P.2d 904; Jones v. Zimmerman, 1957, 180 Kan. 701, 308 P.2d 96. Neither of the latter two decisions treat directly the specific issue, i. e. diligent effort. Both, of course, recognize that full and truthful disclosure is a defense.³ There is a more recent holding of the Kansas court, that of Thompson v. General Finance Co., Inc., 205 Kan. 76, 468 P.2d 269 (1970), cited to us by counsel during arguments. There, as in the case at bar, the instruction given was almost identical with the Kansas pattern instruction.

In the recent Thompson opinion the scope and effect of Haines was clarified, the court holding that the doctrine applies only where the complaining witness has laid before the County Attorney all facts of which he has knowledge. It was noted in Thompson that there was evidence from which the jury might have found that the complaining witness had not truthfully disclosed the facts and, furthermore,...