Pratt v. Kilborn Motors, Inc.

• Citation: 363 N.E.2d 452,48 Ill.App.3d 932,6 Ill.Dec. 770
• Decision Date: 23 May 1977
• Docket Number: No. 13966,13966
• Parties: , 6 Ill.Dec. 770 Victor C. PRATT, Plaintiff-Appellant, v. KILBORN MOTORS, INC. and John Kilborn, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 452

363 N.E.2d 452

48 Ill.App.3d 932, 6 Ill.Dec. 770

Victor C. PRATT, Plaintiff-Appellant, v. KILBORN MOTORS, INC. and John Kilborn, Defendants-Appellees.

No. 13966.

Appellate Court of Illinois, Fourth District.

May 23, 1977.

Thomas R. Daykin, Decatur, for plaintiff-appellant.

Denz, Lowe, Moore, Rodgers & See, Decatur, for defendants-appellees.

GREEN, Presiding Justice:

Plaintiff Victor C. Pratt sued defendants Kilborn Motors, Inc. and John Kilborn in the Circuit Court of Macon County seeking damages for malicious prosecution. Upon defendants' motion, plaintiff's second amended complaint was dismissed in bar of action for failure to state a cause of action. Plaintiff appeals. We affirm.

The parties argue that the essential elements of the tort of malicious prosecution are as stated in Freides v. Sani-Mode Mfg. Co. (1965), 33 Ill.2d 291, 295, 211 N.E.2d 286, 288:

'(1) the commencement or continuance of an original criminal or civil judicial proceeding, (2) its legal causation by the present defendant against plaintiff who was the defendant in the original proceeding, (3) its bona fide termination in favor of the present plaintiff, (4) the absence of probable cause for such proceeding, (5) the presence of malice, and (6) damages resulting to plaintiff. Each of these elements must be present.'

Defendants maintain that the complaint was insufficient because it did not properly allege (1) that the commencement of the original judicial proceeding was legally caused by them, and (2) the absence of probable cause for the initiation of the proceeding. With reference to these issues, the complaint stated in substance: Plaintiff purchased an automobile from defendant corporation and then returned it many times because of malfunctions. Ultimately, pursuant to assurances by that defendant's employees that all malfunctions had been repaired, plaintiff delivered to defendant corporation a check in the sum of $144.16 in payment. Plaintiff then learned that the assurances of the malfunctions having been corrected were false and stopped payment on the check. Defendant corporation through defendant Kilborn, its president, then lodged a malicious and inaccurate complaint with the staff of the county prosecutor by telling an assistant prosecutor only that plaintiff had stopped payment on the check to deprive defendants of their $144.16. The defendants did not tell the assistant about the dispute between the parties concerning the sufficiency of the repairs and made this omission in bad faith.

The complaint contained a general allegation that the statement made by the defendants to the assistant was partially untrue but later in the complaint the statement is set forth in more detail showing the statement to be a true but incomplete account of the dealing between the parties. The complaint also alleged that the incompleteness of the statement misled the prosecutor's staff into thinking that payment had been stopped by plaintiff purely to deceive defendants and that plaintiff had thereby committed a crime. The complaint then alleges that the prosecutor subsequently filed an information charging plaintiff with the offense of deceptive practices (Ill.Rev.Stat.1973, ch. 38, par. 17--1(d).) As set forth in the motion to dismiss, that information charged plaintiff with committing the offense of deceptive practices in that, with the intent to defraud defendant corporation, and obtain control over its property, plaintiff did deliver a check for payment of money knowing that the check would not be paid by the depository.

The questions of whether the defendants are alleged to have legally caused the initiation of the criminal proceeding and whether they did so without probable cause are interrelated. The question of probable cause ordinarily arises in a case where the defendant, after seeking the advice of the prosecutor and being advised by him to do so, appeared before a judicial officer and swore to a complaint charging the plaintiff with a crime. Such a case is Brown v. Tucker (1918), 214 Ill.App. 162, 164, where the court recited the well accepted rule that:

'When a prosecuting witness before beginning a case goes to a competent attorney and discloses to him in good faith all the facts and information he has as to a supposed offense as well as the source of his information, and then acts on the advice of such attorney and starts a criminal prosecution, he will be considered as having had probable cause for such prosecution, even if afterward the party charged is found to be not guilty of the offense charged.'

There, the alleged tortious acts are the swearing to the complaint and presenting it to the judicial officer, acts which clearly cause the subsequent prosecution. If the defendant has properly obtained the prior advice of the prosecutor, he is deemed to have had probable cause to initiate the criminal prosecution and is immune from liability for doing so. Here, the alleged tortious acts were that the defendants went to the prosecutor and complained that plaintiff had given them a check and then stopped payment on it. The complaint here was sufficient to allege that at the time defendants went to the prosecutor and gave the information, they, the defendants, did not have probable cause for believe that plaintiff had committed the crime with which he was later charged.

The more difficult question is whether the complaint is sufficient to allege that defendants in complaining to the prosecutor legally caused the subsequent prosecution of the plaintiff. No Illinois case so...