Shoemaker v. Selnes

• Decision Date: 10 February 1960
• Citation: 220 Or. 573,87 A.L.R.2d 170,349 P.2d 473
• Parties: , 87 A.L.R.2d 170 Jack A. SHOEMAKER, Appellant, v. Arnold SELNES, Jens Svinth, G. Carroll Meeks, individually and as agents and officers, of The United States National Bank of Portland, Oregon, a National Banking Association, and The United States National Bank of Portland, Oregon, a National Banking Association, Respondents.
• Court: Oregon Supreme Court

Page 473

349 P.2d 473

220 Or. 573, 87 A.L.R.2d 170

Jack A. SHOEMAKER, Appellant, v. Arnold SELNES, Jens Svinth, G. Carroll Meeks, individually and as agents and officers, of The United States National Bank of Portland, Oregon, a National Banking Association and The United States National Bank of Portland, Oregon, a National Banking Association, Respondents.

Supreme Court of Oregon, Department 1.

Argued and Submitted Jan. 6, 1960.

Decided Feb. 10, 1960.

R. W. Pickell, Salem, argued the cause and filed briefs for appellant.

T. W. Churchill, Salem, and Manley B. Strayer, Portland, argued the cause for respondents. With them on the brief were E. L. Crawford, Salem, R. H. Huntington and Hart, Rockwood, Davies, Biggs & Strayer, Portland.

Before McALLISTER, C. J., and SLOAN, O'CONNELL and HARRIS, JJ.

HARRIS, Justice pro tem.

This is an action for malicious prosecution. After the plaintiff rested his case, the court sustained the motions of defendants Arnold Selnes, Jens Svinth, and G. Carroll Meeks for judgment of involuntary nonsuit. The court also sustained the motion of defendant The United States National Bank of Portland for a directed verdict in its favor after the latter had rested its case without presenting evidence. From a judgment based on said rulings, the plaintiff appeals.

The plaintiff, Jack A. Shoemaker, was the president and principal stockholder of Washington Creamery Co., a corporation (hereinafter referred to as the processor), located in Silverton, Oregon, and engaged in the marketing and processing of turkeys. Defendant Arnold Selnes (hereinafter referred to as the grower) was a turkey grower.

In December, 1954, the grower turned over certain turkeys to the processor. This transaction and the financial arrangements which draw the defendant bank and its officers, the defendants Svinth and Meeks, into the picture are fully set forth in the related case of Montgomery v. United States National Bank, Or., 349 P.2d 464.

Subsequent to the transaction mentioned in the foregoing paragraph, on March 16, 1955, a criminal action was instituted against the plaintiff in the district court of Marion County, Oregon, upon a complaint sworn to by the defendant Arnold Selnes, charging the plaintiff with the crime of embezzlement by bailee of the turkeys in question. After a preliminary hearing, plaintiff was bound over to the grand jury and later indicted by that body. Plaintiff was subsequently tried on this indictment in the circuit court in June, 1955, and was acquitted by the jury.

The principal assignment of error complain of the court's rulings in sustaining the respective motions of the defendants above referred to and in refusing to admit into evidence certain material hereinafter mentioned.

The record indicates that the trial court allowed the motions for nonsuit and directed verdict principally upon the grounds that plaintiff had failed to prove that the criminal proceedings were instituted against the plaintiff without probable cause, and that plaintiff was actually guilty of the offense for which he was prosecuted.

The elements of a cause of action for malicious prosecution are:

'(1) A private person who initiates criminal proceedings against another who is not quilty of the offense charged is liable to him for the harm done thereby if the proceedings

'(a) were initiated

'(i) without probable cause, and

'(ii) primarily because of a purpose other than that of bringing an offender to justice, and

'(b) A private person who procures the institution of criminal proceedings against another is liable under the conditions stated in Subsection (1).' 3 Restatement 382, Torts § 653. (Emphasis supplied.)

See also 34 Am.Jur. 703, Malicious Prosecution § 2; 706, § 6; 707, § 8; 715-716, § 22.

It thus appears that plaintiff must not only prove that the prosecution was instituted because of an improper purpose (other than that of bringing an offender to justice), but must also prove as an additional element that the proceedings were initiated without probable cause. 3 Restatement 382, Torts § 653; id. 404, § 662; id. 423, § 668; 34 Am.Jur. 729, 731, Malicious Prosecution § 46.

Moreover, in order to recover, plaintiff must not have been guilty of the offense charged. 3 Restatement 382, Torts § 653; id. 390, § 655; 34 Am.Jur. 741, Malicious Prosecution § 58; 747, § 70; 788-789, § 147.

For the moment we will pass the question of upon whom lies the burden of proof with reference to the last-stated matter. However, the fact that the person against whom a criminal proceeding is instituted is actually guilty of the crime charged against him is a complete defense against liability for instituting or pressing such proceeding. Under this rule the guilt or innocence of the person accused in a criminal proceeding may be retried despite the termination of those proceedings in his favor. This is so even though the accused was acquitted after trial by a verdict of not guilty. 3 Restatement 393, Torts § 657; Meyer v. Nedry, 159 Or. 62, 67, 78 P.2d 339; Eastman v. Monastes, 32 Or, 291, 51 P. 1095.

In fact, the acquittal in the criminal case is not even prima facie evidence of want of probable cause for the prosecution. Eastman v. Monastes, supra, 32 Or. at page 297, 51 P. at page 1097; 34 Am.Jur. 740-741, Malicious Prosecution § 58.

It must be remembered a verdict of not guilty in a criminal proceeding is not necessarily a finding the accused was innocent. It may, and often does, mean no more than that the jury were not convinced of his guilt beyond a reasonable doubt. 3 Restatement 393, Torts § 657; 34 Am.Jur. 740, Malicious Prosecution § 58.

Let us now turn to the question of probable cause. 3 Restatement 403, Torts § 662, sets forth the elements of probable cause as follows:

'One who initiates criminal proceedings against another has probable cause for so doing if he

'(a) reasonably believes that the person accused has acted or failed to act in a particular manner, and

'(b)

'(i) correctly believes that such acts or omissions constitute at common law or under an existing statute the offense charged against the accused, or

'(ii) mistakenly so believes in reliance on the advice of counsel under the conditions stated in § 666.'

From the foregoing we note that if one who initiates a criminal proceeding reasonably believes that the person accused has acted in a certain manner and correctly believes that such act constitutes the offense charged, the accuser has probable cause for his initiating the criminal proceedings.

'* * * 'probable cause' comprehends the existence of such facts and circumstances that would excite in a reasonable mind the honest belief that the person is guilty of the crime charged * * *.' Drake v. Anderson, 215 Or. 291, 334 P.2d 477; Engelgau v. Walter, 181 Or. 481, 489, 182 P.2d 987.

'Want of probable cause is the gist of the action. Its nonexistence must be pleaded and proven if plaintiff is to prevail. White v. Pacific Tel. & Tel. Co., 162 Or. 270, 273, 90 P.2d 193.' Drake v. Anderson, supra, 215 Or. at page 294, 334 P.2d at page 479.

The acquittal of the accused by the jury is not evidence of lack of probable cause. Meyer v. Nedry, supra. It is not even prima facie evidence of want of probable cause. Engelgau v. Walter, 181 Or. 481, 492, 182 P.2d 987.

'c. The fact that the accused was acquitted after trial by a magistrate or court is properly regarded as immaterial in determining the existence or nonexistence of probable cause. The existence of probable cause depends upon the accuser's reasonable belief in facts which, if true, would justify his belief in the guilt of the accused, while an acquittal by a magistrate or court merely shows that the evidence produced at the trial was not sufficient to remove all reasonable doubts as to the guilt of the accused.' 3 Restatement 422, Torts § 667.

Having stated the principles of law applicable to probable cause, we must now determine the function of the court and jury in passing upon and determining this necessary element in an action for malicious prosecution.

In Kuhnhausen v. Stadelman, 174 Or. 290, 310-311, 148 P.2d 239, 247, 149 P.2d 168, this court, speaking through Mr. Justice Lusk, held:

'It is a firmly established rule in this state that in actions for malicious prosecution the question of probable cause is a question of law which the judge must decide upon established or conceded facts. If none of the facts are in dispute, the court must decide the case without the intervention of a jury; but, if the case cannot be so decided, it must go to the jury with instructions from the court that certain facts, if found by them to exist, do or do not constitute probable cause; and it is not competent for the court to give to the jury a definition of probable cause and instruct them to find for or against the defendant according as they may determine the the facts are within or without that definition.'

In other words, where the facts or circumstances under which defendant acted are in dispute, such issue must go to the jury with instructions from the court that certain facts, if found to exist, do or do not constitute probable cause. However, if there is no conflict in the evidence the question of probable cause is a question of law for the court. 3 Restatement 434, Torts § 672. Where there is no conflict in the evidence as to what the circumstances were, the court solely must determine the question of lack of probable cause. Id. 437-438, § 673. Plaintiff has the burden of persuading the court that the circumstances under which defendant acted did not give him reasonable cause for initiating the criminal proceedings. Drake v. Anderson, supra, 215 Or. at page 295, 334 P.2d at page 479; 3 Restatement 434, Torts § 672.

'* * * If there is no evidence whatever from which the jury might have inferred that the defendants did not in fact believe that a crime had been committed and that plaintiff had committed it, the question of defendants'...