Schmidt v. Leben, 8568

• Decision Date: 10 March 1971
• Docket Number: No. 8568,8568
• Citation: 184 N.W.2d 611
• Parties: Anthony J. SCHMIDT, Plaintiff and Respondent, v. Leonard LEBEN and Bismarck Super Market, a corporation, Defendants and Appellants. Civ.
• Court: North Dakota Supreme Court

Page 611

184 N.W.2d 611

Anthony J. SCHMIDT, Plaintiff and Respondent, v. Leonard LEBEN and Bismarck Super Market, a corporation,

Defendants and Appellants.

Civ. No. 8568.

Supreme Court of North Dakota.

March 10, 1971.

Syllabus by the Court

1. In an action for malicious prosecution the burden of proof is upon the plaintiff to show want of probable cause on the part of the defendant for instituting the proceedings complained of.

2. When a person, contemplating criminal proceedings against another, makes to the state's attorney of the county a full, fair, and complete statement of all the facts within his knowledge, and which he should have known regarding the criminal acts charged and the complicity of the suspected party therein, and is advised by said official to commence criminal prosecution, such statement and advice constitute a complete defense to an action for malicious prosecution because of the commencement of such criminal proceedings.

3. When a person has probable cause for instituting criminal proceedings, then malice is not material.

4. The plaintiff in an action for malicious prosecution must prove both want of probable cause and malice on the part of the one instituting the criminal proceedings. He cannot recover if either be lacking.

5. For reasons stated in the opinion, the plaintiff has failed in his burden to prove want of probable cause and malice.

Pearce, Engebretson, Anderson, Schmidt & Thames, Bismarck, for defendants-appellants.

Floyd B. Sperry, Bismarck, for plaintiff-respondent.

KNUDSON, Judge.

This is an action for damages for malicious prosecution, the plaintiff charging that the criminal proceedings were instituted without probable cause and with malice; that he was damaged in the sum of $2,000 actual damages; and for the further sum of $5,000 punitive damages.

The defendants answered jointly, and except for admitting the corporate capacity of the defendant Bismarck Super Market and that Leonard Leben was the manager, as alleged, and admitting to making the complaint, they denied having acted at any time without probable cause and with malice, and denied all other allegations.

The case was tried to the court, who found for the plaintiff in the sum of $2,500 actual damages and $2,500 exemplary damages, for a total judgment of $5,089.30, with costs, and judgment was entered thereon, from which judgment this appeal is taken.

It appears that a check in the amount of $20.00, drawn on the First National Bank of Mandan and signed by one A. J. Schmidt, was given to the defendant store. This check, with other checks, was deposited by the defendant Super Market and in due course was returned by the Mandan bank marked 'No Account.' The defendant's manager, Leben, searched the Bismarck and Mandan telephone books for the telephone number of an A. J. Schmidt and found such a number listed at an address in Bismarck, North Dakota. Mr. Leben called that number and was informed that it was the home of A. J. Schmidt, a former Land Commissioner of the state of North Dakota who was now, and had been for some time, deceased. About two weeks later Mr. Leben took the check to the Burleigh County State's Attorney's office and informed the assistant state's attorney that his store had received this check, that it had been deposited and duly presented for payment and that it was returned marked 'No Account,' and that he had found a number for one A. J. Schmidt in the Bismarck telephone book, that he had called the number and found that the A. J. Schmidt there listed in the telephone book had been dead for some time. The assistant state's attorney advised him--or suggested--that he sign a complaint against A. J. Schmidt for the issuance of a check without sufficient funds or issuing a check with no account. The complaint was prepared, and Mr. Leben signed the complaint, which was presented to the Judge of the County Court of Increased Jurisdiction of Burleigh County, who issued a warrant for the arrest of one A. J. Schmidt. The Burleigh County sheriff testified that the warrant was sent to the office of the Cass County sheriff. A letter from the Cass County sheriff was admitted into evidence wherein he said that he received the warrant of arrest with a note attached thereto with the information as to where the accused lived, for whom he worked, the kind of work he did, and from where he had come. Apparently this information related to one Anthony J. Schmidt who lived in West Fargo, North Dakota, and worked for the Bureau of Reclamation. Two deputy sheriffs of Cass County went to the home of Anthony J. Schmidt in West Fargo and found neither Anthony J. Schmidt nor his wife at home. The deputy sheriffs inquired of the neighbors as to the whereabouts of Anthony J. Schmidt. Later on that afternoon of that day, at about three o'clock, Anthony J. Schmidt and his wife returned to their home and they were informed by a neighbor that the sheriff's office had made inquiry for them. He then called the Cass County sheriff's office to inquire of them why they had called at his home. He was informed that they had a warrant for his arrest for issuing a no-account check. They asked him for whom he worked. He told them he worked for the Bureau of Reclamation. Two deputy sheriffs then called at his home and he was taken to the office of the Cass County sheriff and was released about three hours later upon posting a hundred fifty dollar bail. Upon his release, about 6:00 p.m., he departed for Bismarck where he arrived later on that evening. The next morning he, with the supervisor from his employing agency, called upon an attorney in Bismarck, who phoned the assistant state's attorney to inform him that they had arrested the wrong man. Anthony J. Schmidt went to the Burleigh County sheriff's office in Bismarck, and also to the state's attorney's office, and after comparing the signatures he convinced the officials that he was not the man they wanted and they agreed to dismiss the complaint as to him. The testimony is rather vague whether or not the state's attorney or the sheriff called Mr. Leben to come over and identify Anthony J. Schmidt. The assistant state's attorney could not recall such a telephone conversation. Anthony J. Schmidt testified that such a telephone call was made by the assistant state's attorney and that Mr. Leben had refused to come over to identify him as he said he could not identify Anthony J. Schmidt as the person who had signed the check as A. J. Schmidt.

Mr. Leben testified that the assistant state's attorney called him to come to the sheriff's office to identify one Anthony J. Schmidt as the person who issued the check as A. J. Schmidt. He testified that he did not know what to do because ordinarily each cashier, when taking a check, places the cashier's identification number on the check, but on this check there was no identification number and, consequently, he did not know which cashier had taken the check and, therefore, he had no one to identify the person who had given the check. Accordingly, Mr. Leben declined to go to the sheriff's office.

About two or three weeks after his arrest, Anthony J. Schmidt and an attorney, Mr. Beeks, called at the Bismarck Super Market and inquired of Mr. Leben how information had been obtained regarding Anthony J. Schmidt that caused him to be suspected and arrested for issuing the no-account check. Mr. Leben replied that he had signed the complaint against the person whose signature appeared on the check. Mr. Leben testified that Mr. Rockstad, one of the officers of the Super Market, was also present at this conference, and stated that they hadn't picked on anyone in particular, that they were sorry it...