Ross v. Kerr

• Decision Date: 26 June 1917
• Citation: 167 P. 654,30 Idaho 492
• Parties: P. C. ROSS, Respondent, v. GEORGE KERR, Appellant
• Court: Idaho Supreme Court

167 P. 654

30 Idaho 492

P. C. ROSS, Respondent, v. GEORGE KERR, Appellant

Supreme Court of Idaho

June 26, 1917

MALICIOUS PROSECUTION - PROBABLE CAUSE - ADVICE OF COUNSEL - MALICE-COMPENSATORY AND PUNITIVE DAMAGES-TERMINATION OF PROSECUTION IN FAVOR OF ACCUSED.

1. To entitle a party to recover damages by reason of malicious prosecution, it must appear that the person who preferred the criminal charge acted without probable cause to believe the accused guilty of the crime charged, that he acted with malice and that the criminal action was terminated in favor of accused.

2. The existence of facts showing probable cause is for the jury to determine; whether or not the facts, found by the jury to exist, constitute probable cause is a question for the court.

3. To justify by advice of counsel defendant must show that he truly, correctly, fully, fairly and in good faith stated to such counsel all the facts within his knowledge, or which he might, with reasonable diligence, have ascertained, bearing upon the guilt or innocence of the accused.

4. Malice must be shown to have existed before a recovery may be had by reason of a malicious prosecution, but malice, as a fact, may be inferred by the jury from the absence of probable cause. In order to recover punitive damages however, actual malice in preferring the charge must be shown to have existed. This is done by showing that the person who preferred the charge was actuated by ill will or a desire to injure the accused.

5. The fact that the testimony taken at the preliminary examination was not written by a reporter does not render the proceeding void or the order discharging the accused of no avail as a determination in his favor of the criminal action.

[As to what is necessary to support an action for malicious prosecution, see notes in 12 Am.Dec. 215; 26 Am.St. 127]

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Chas. P. McCarthy, Judge.

Action for malicious prosecution. Judgment for plaintiff. Affirmed.

Judgment affirmed. Costs awarded to respondent. Petition for rehearing denied.

J. L Niday, for Appellant

In actions of malicious prosecution the plaintiff must, in order to recover, establish not only malice, but want of probable cause. Those two elements are essential, and they must concur or the action will not lie. (Potter v. Scale, 8 Cal. 217, 220; Anderson v. Coleman, 53 Cal. 188; Grant v. Moore, 29 Cal. 644; Smith v. Liverpool etc. Ins. Co., 107 Cal. 432, 40 P. 540.)

The action of malicious prosecution is not favored in law, and hence has been hedged about by limitations more stringent than in the case of almost any other act causing damage to another. (Russell v. Chamberlin, 12 Idaho 299, 303 9 Ann. Cas. 1173, 85 P. 926; Ball v. Rawles, 93 Cal. 222, 27 Am. St. 174, 28 P. 937; Gee v. Culver, 12 Ore. 228, 6 P. 775; Burt v. Smith, 181 N.Y. 1, 73 N.E. 495, 2 Ann. Cas. 576, and cases cited.)

If the defendant acted in good faith on evidence, whether true or false, which is sufficient to create a reasonable belief that the accused is guilty of the offense, he is protected. ( Anderson v. Friend, 85 Ill. 135.)

When a person acting in good faith and under advice of counsel, is led to institute a criminal prosecution against another, and thereafter the prosecution fails, the prosecutor does not thereby render himself liable to an action for malicious prosecution or any other action. (Central Light & Fuel Co. v. Tyron, 42 Okla. 86, 140 P. 1152; Le Clear v. Perkins, 103 Mich. 131, 61 N.W. 357, 26 L. R. A. 627; Cooper v. Fleming, 114 Tenn. 40, 84 S.W. 801, 68 L. R. A. 849; Elreno Gas & Electric Co. v. Spurgeon, 30 Okla. 88, 118 P. 397.)

It is not necessary that every fact should be disclosed to the attorney in order to be protected under his advice. ( Young v. Jackson (Tex. Civ. App.), 29 S.W. 1111; Harris v. Woodford, 98 Mich. 147, 57 N.W. 96; Baldwin v. Weed, 17 Wend. (N.Y.) 224.)

It is a good defense to an action for malicious prosecution, that the defendant, before commencing the prosecution, presented the matter to the county attorney, fairly stating to him all the facts, and then in good faith followed his advice. ( Schippel v. Norton, 38 Kan. 567, 16 P. 804.)

The government cannot allow the citizen to suffer for his trust in its proper functionaries. (Laughlin v. Clawson, 27 Pa. 328, 330.)

Express or positive malice must be shown, as well as the absence of probable cause. (Long v. Rodgers, 19 Ala. 321.)

Malice is a fact to be proved and not an inference of law. (Gee v. Culver, 12 Ore. 228, 6 P. 775.)

A nolle prosequi entered by the procurement of the party prosecuted or by his consent, or by way of compromise, is not such a determination of the prosecution alleged to have been malicious as will enable the party prosecuted to maintain the action. (Langford v. Boston etc. R. Co., 144 Mass. 431, 11 N.E. 697; Woodman v. Prescott, 66 N.H. 375, 22 A. 456.)

"The existence of probable cause for a prosecution is always a matter of law to be determined by the court." (Ball v. Rawles, 93 Cal. 222, 27 Am. St. 174, 28 P. 937, 26 Cyc. 106.)

The court erred in submitting to the jury the question of compensatory or punitive damages. (Stilson v. Gibbs, 53 Mich. 280, 284, 18 N.W. 815; Wilson v. Bowen, 64 Mich. 133, 31 N.W. 81.)

Perky & Brinck, for Respondent.

Under the contract between the parties, respondent was merely the debtor of appellant. Had he collected all of his accounts and appropriated the whole amount he could not have been guilty of embezzlement. (State v. Covert, 14 Wash. 652, 45 P. 304; Dixie Fire Ins. Co. v. Nelson, 128 Tenn. 70, 157 S.W. 416; note in 87 Am. St. 37, 38.)

There could therefore have been no probable cause for the prosecution. Probable cause may be founded upon misinformation as to facts, but not as to law. (Hazzard v. Flury, 120 N.Y. 223, 24 N.E. 194; Whitney v. New York Cas. Ins. Assn., 27 A.D. 320, 50 N.Y.S. 227; Hall v. Hawkins, 5 Humph. (24 Tenn.) 357; Parli v. Reed, 30 Kan. 534, 2 P. 635.)

A criminal prosecution upon any other motive than that of bringing a guilty party to justice, is malicious. (Krug v. Ward, 77 Ill. 603; Kendrick v. Cypert, 10 Humph. (29 Tenn.) 291; Gabel v. Weisensee, 49 Tex. 131; Vinal v. Core, 18 W.Va. 1; 19 Am. & Eng. Ency. of Law, 2d ed., 675.)

If there was any conflict in the evidence as to whether there was a compromise between the parties, it was properly a question for the jury and properly submitted to them, whether the dismissal was brought about by the settlement. (L. R. A. 1915A, 604; Marcus v. Bernstein, 117 N.C. 31, 23 S.E. 38.)

The court did not submit the question of probable cause to the jury to determine, but submitted special interrogatories as to disputed facts, from their answers to which he could make his findings as to probable cause. Where there is any conflict in the facts this is the proper procedure. ( Burton v. St. Paul etc. Ry. Co., 33 Minn. 189, 22 N.W. 300; 26 Cyc. 107-109, and cases cited.)

The jury may in a proper case assess punitive damages. (26 Cyc. 64, 65, 117; 4 Sutherland, Damages, 3d ed., 3579, and n. 2.)

MORGAN, J. Budge, C. J., and Rice, J., concur.

OPINION

MORGAN, J.

From December 2, 1912, to May 10, 1913, the respondent, Ross, was employed by the American Laundry Company of which appellant, Kerr, was part owner and president. His duties were those of a driver of one of the delivery wagons of the company and to solicit patronage and deliver the articles when laundered. On or about May 29, 1913, he was arrested upon a charge of embezzlement preferred against him by appellant, who accused him of misappropriating moneys collected from the patrons of the laundry. Respondent thereupon gave bond and on July 9, 1913, was discharged, by order of the justice of the peace before whom the preliminary proceedings were had, and the charge against him was dismissed. Thereafter he instituted this action against appellant for malicious prosecution. The jury rendered a verdict in his favor in the sum of $ 2,000, $ 1,500 of which was allowed as compensatory damages and $ 500 as punitive damages, and judgment was entered for these amounts. Appellant moved for a new trial, which motion was denied. This appeal is from the judgment and from the order denying the motion for a new trial.

It is contended by appellant that the evidence disclosed probable cause for believing the respondent guilty of embezzlement. There is a direct conflict in the testimony concerning the terms of the contract of employment between respondent and the Laundry Company. The terms of this agreement are a very material factor in determining the question of probable cause.

Appellant, and other witnesses in his behalf, testified that under the terms of this contract Ross was to collect the money due from the patrons of the laundry, and account for the same each week and that he was to receive, as his compensation, fifteen per cent of the money collected, it being understood, however, that the commissions on the returns of the first week were to be paid to a party by the name of Smith, who was respondent's predecessor and who accompanied him during that time in order to familiarize him with his duties. On the other hand, respondent testified that by the agreement of employment he was to be charged by the company for all the laundry he procured, whether or not the charge therefor was collected by him, and he was to reimburse himself by making the collections; that he was to receive fifteen per cent, based not upon the amount of money collected, but upon the amount of business procured; that it was not the understanding that the first week's commissions should go to Smith.

Respondent's testimony is corroborated, to some extent, by recitals...