Rose v. Whitbeck

• Decision Date: 24 May 1977
• Citation: 277 Or. 791,562 P.2d 188
• Parties: Betty E. ROSE, Respondent, v. Nettie C. WHITBECK, also known as Nettie DeFord, and Theodore Rose, Appellants.
• Court: Oregon Supreme Court

Page 188

562 P.2d 188

277 Or. 791

Betty E. ROSE, Respondent, v. Nettie C. WHITBECK, also known as Nettie DeFord, and Theodore Rose, Appellants.

Supreme Court of Oregon.

Argued and Submitted Jan. 3, 1977.

Decided March 31, 1977.

Rehearing Denied May 24, 1977. See 564 P.2d 671.

Ridgway K. Foley, Jr., of Souther, Spaulding, Kinsey, Williamson & Schwabe, Portland, and David G. Frost, Hillsboro, argued the cause and filed briefs for appellants.

George E. Birnie, Portland, argued the cause and filed a brief for respondent.

Before DENECKE, C.J., and HOLMAN, HOWELL, BRYSON, LENT and BRADSHAW, JJ.

BRYSON, Justice.

Plaintiff, Betty Rose, brought this action for malicious prosecution against her brother-in-law, Ted Rose, and sister-in-law, Nettie Whitbeck. This action arises out of a family quarrel involving the probate and distribution of assets in the estate of LeRoy D. Rose. ¹ Defendants appeal from a judgment entered on a jury verdict in favor of plaintiff.

Defendants contend that the plaintiff failed as a matter of law to prove that the criminal proceedings against plaintiff were instituted by defendants, that defendants lacked probable cause, or that the proceedings were terminated in plaintiff's favor. Defendants maintain that for these reasons the trial court erred in denying their motions for nonsuit and directed verdict.

We review the evidence in the light most favorable to the plaintiff. Lampos v. Bazar, Inc., 270 Or. 256, 267, 527 P.2d 376 (1974).

The evidence when so reviewed reveals the following facts. Joe, Betty's husband, and Nettie were the co-executors of LeRoy's estate. As a result of incidents relating to the management of LeRoy's property prior to his death on March 17, 1973, and the marshalling of the assets of his estate thereafter, animosity arose between Joe and the defendants.

Prior to his death on March 17, 1973, LeRoy gave Betty his 1964 Buick. At the time of the gift, the Buick was registered in the name of Mildred Rose, LeRoy's deceased wife. At LeRoy's request, Betty signed Mildred's name to the title and had it placed in her own name. Testimony was presented from which the jury could reasonably conclude that the title was delivered into Betty's possession by defendant Nettie, and that both defendants were aware that the Buick was a gist prior to May 10, 1973, the date Ted first complained to the sheriff's department in regard to Betty's possession of the Buick.

At Ted's request, Deputy Sheriff Kenneth Engh undertook to investigate Betty's actions. Ted gave Deputy Engh a copy of the title to the Buick, which he had procured from the Department of Motor Vehicles. He also related to the deputy statements made by LeRoy's housekeeper that she had seen Joe removing papers from Mildred's and LeRoy's safe immediately after Mildred's death. Ted did not inform the deputy that the Buick had been a gift from LeRoy to Betty. Deputy Engh learned of the gift characterization of the transaction only when he interviewed Betty the following month.

The information obtained by Deputy Engh was forwarded to District Attorney Robinett. Robinett decided that the matter should be sent to the grand jury and called Ted and Ettie to testify. The district attorney could not remember whether he spoke to Ted and Nettie before or after his decision to present the matter to the grand jury. Both defendants testified that they did not visit the district attorney's office prior to their being called as witnesses before the grand jury. However, Ted did admit to contacting the office several times thereafter to check on the progress of the case.

The grand jury, after hearing the testimony of Ted, Nettie, and Deputy Engh, and after reading the report of Detective Robert C. Phillips, returned an indictment for forgery against plaintiff.

Betty was never brought to trial. After the indictment, the probate court, having jurisdiction over LeRoy's estate, determined the Buick to have been a gift. In view of this adverse determination of the issue critical to the state's case against Betty, the district attorney moved that the indictment against Betty be dismissed. The indictment was dismissed by the court on December 20, 1974.

Public policy requires that those who have good reason to believe the law has been violated should be encouraged to bring that information to the law enforcement authorities to the end that those guilty of crime may be brought to trial and punished. ² In order to recover for this tort, the burden is upon the plaintiff to prove each of the following elements: (1) the institution or continuation of the original criminal proceedings; (2) by or at the insistence of the defendant; (3) termination of such proceedings in the plaintiff's favor; (4) malice in instituting the proceedings; (5) lack of probable cause for the proceeding; and (6) injury or damage because of the prosecution. ³ If any element is left unproven, plaintiff's case must fail.

We review first as to Nettie Whitbeck. Defendant Nettie moved for a nonsuit and directed verdict on the grounds that plaintiff failed to prove that Nettie participated in instituting the indictment. In order to find that Nettie participated in instituting the indictment, plaintiff must prove that Nettie was 'actively instrumental in putting the law in force.' ⁴ It is not, however, required that a defendant personally or single-handedly institute the criminal proceeding. A defendant may be held to have satisfied this prerequisite where she has urged or insisted that another institute the criminal proceeding ⁵ or where due to proof of agency or conspiracy she is made responsible for the acts and conduct of others.

As to defendant Nettie, there is no evidence to prove that her brother Ted acted on her behalf or thet Nettie conspired with Ted 'in putting the law in force.' Plaintiff has also failed to present any evidence that Nettie urged or otherwise insisted that Ted institute a police investigation regarding Betty's possession of the Buick.

The evidence does reveal Nettie and Ted to have been closely allied in the intra-family arguments concerning the estate and that Nettie agreed with her brother's assessment that Betty was guilty of forgery. However, this evidence falls short of showing that Nettie urged her brother to seek a police investigation, or even that she condoned his action in doing so. If Nettie is to be held liable, that liability must be judged solely upon her actions and not upon her brother Ted's actions on his own behalf.

The evidence shows Nettie's only role in Betty's indictment to have been that of a witness called by the grand jury to testify before it. This limited participation is as a matter of law insufficient to render Nettie liable for malicious prosecution. Prosser, Law of Torts (4th ed 1971) § 119 at pages 836--37 explains this as follows:

'The defendant may be liable either for initiating or for continuing a criminal prosecution without probable cause. But he cannot be held responsible unless he takes some active part in instigating or encouraging the prosecution. He is not liable merely because of his approval or silent acquiescence in the acts of another, nor for appearing as a witness against the accused * * * since the necessities of a free trial demand that witnesses are not to be deterred by fear of tort suits, and shall be immune from liability. * * *' (Footnotes omitted.)

See also 54 A.L.R.2d 1289, 1314--1315.

In the instant case there is no evidence of perjury. It is argued that Nettie acted improperly in failing to inform the grand jury that the Buick was a gift. But, it should be noted that the role of a grand jury witness is essentially a passive one. Nettie only responded to the questions of the district attorney and the frand jurors. No evidence was presented that Nettie had any opportunity or duty to make unsolicited disclosure that the Buick was a gift. Plaintiff called Nettie as a witness. See testified:

'Q Now, did you participate in the signing of the Complaint against Betty for forgery?

'A No, sir, I did not.

'Q Did Mr. Engh talk to you regarding it?

'A I never met Mr. Engh until today.'

It follows from what has been said that defendant Nettie's motion for nonsuit or a directed verdict should have been granted. We turn now to the contentions of defendant Ted.

Defendant Ted first contends that, as in the case of his sister Nettie, the trial court should have granted his motions for nonsuit and directed verdict as plaintiff failed to prove that the criminal proceedings were instituted by him. The rule, enunciated by the Restatement of Torts § 653 and adopted by this court in Humbert v. Knutson et al., 224 Or. 133, 138--40, 354 P.2d 826 (1960), is that where the prosecutor, after an independent investigation and in the exercise of his independent discretion, decides to bring criminal proceedings, the defendant will be insulated from liability. This rule contains the limitation that the defendant must have been truthful and did not withhold information in his presentation of the facts to the prosecutor. As we state in Humbert v. Knutson et al., supra at 138, 354 P.2d at 828 '* * * If pertinent information is withheld or there are misrepresentations made as to the facts, or undue influence brought to bear, there can be no intelligent exercise of the officer's discretion, and the person thus procuring the action of the officer is not insulated from responsibility. * * *'

To the same effect see Pearson v. Galvin, 253 Or. 331, 337, 454 P.2d 638 (1969).

Comment g, Influencing a public prosecutor, § 653 of the Restatement of Torts, explains this limitation as follow:

'If, however, the information is known by the giver to be false, an intelligent exercise of the officer's discretion becomes impossible and a prosecution based thereon is procured by the person giving the false information. In order to charge a private person with responsibility for the initiation of proceedings by a public...