Thomas v. Hinton

• Decision Date: 05 April 1955
• Docket Number: No. 8235,8235
• Parties: Roy THOMAS, Plaintiff-Respondent, v. W. J. HINTON, Defendant-Appellant. W. J. HINTON, Darrell Smith and Cecil Cooper, Cross-Complainants, v. Roy THOMAS, Cross-Defendant.
• Court: Idaho Supreme Court

Page 1050

281 P.2d 1050

76 Idaho 337

Roy THOMAS, Plaintiff-Respondent, v. W. J. HINTON, Defendant-Appellant.

W. J. HINTON, Darrell Smith and Cecil Cooper, Cross-Complainants, v. Roy THOMAS, Cross-Defendant.

No. 8235.

Supreme Court of Idaho.

April 5, 1955.

Anderson, Kaufman & Kiser, Boise, for appellant and cross-complainants.

Grant L. Ambrose, Meridian, for respondent and cross-defendant.

ANDERSON, Justice.

December 3, (appellant contends to was December 6) 1952, two men with a truck went to a farm near Grandview, Idaho, owned by W. J. Hinton, appellant, and Darrell Smith, which was being farmed by Cecil Cooper as a share-crop renter. No one was home but Virgil Gillihan, who was working for Cooper. The men told him they had purchased some hay from Cooper. Gillihan stated he knew nothing about it, but finally showed them where the stack was and they took a load of hay. The next day when he saw Cooper, Gillihan told him about the hay being taken and Cooper stated he knew nothing about any sale of hay or who could have taken it. Later appellant was informed and he, likewise, knew nothing about who took the hay, but commenced making inquiry at Grandview, without success. He got a lead later that it might be someone from Meridian. December 12, he and Cooper went to Meridian and made inquiry as to who had been hauling hay and finally contacted Frank Logan, who stated he had hauled a load of hay from the Cooper place December 3, 1952, for respondent and had it weighed at Mountain Home, and that he thought the hay had been paid for. The weight slip does not disclose that it was hay from the Cooper place and appellant contends his hay was not taken until December 6, 1952.

December 12, 1952, appellant and Cooper contacted respondent at the Meridian Feed and Fuel Store and claimed that eight tons were taken for which they should be paid $25 per ton, or $200. Appellant contends respondent at first denied knowing anything about any hay taken from the Cooper place and that he never offered to pay for it at that time. Respondent claimed only 5.51 tons were taken and that $137.75 was the correct amount; that he had given a check to one Roy McConnell to give to Cooper when he went to Grandview for hay. He claims he offered to pay as soon as the check was returned to him, but he would not until then. Thereafter, a check was mailed by respondent's attorney to appellant for $137.80. It was refused and then payment stopped.

Nothing was said at this meeting about hay being sold or purchased, but the evidence disclosed that on or about November 30, respondent and Eugene Welker went to Grandview looking for hay. They saw Cecil Cooper parked in Grandview with a load of hay and asked him if he was selling it, and the price. Cooper told him he was selling to Nevada people for $25 a ton. Respondent contends Cooper told him he could have not to exceed 20 tons at $25 per ton. Cooper denied this and stated he never sold respondent any hay. Cooper testified he told respondent he didn't know whether there would be any hay left after the Nevada sale and to see him in a week or so. He was a share-crop tenant on property owned by appellant and Darrell Smith and had no authority to sell without appellant's consent.

December 13, appellant contacted the Prosecuting Attorney of Ada County to ascertain what he should do about the matter and a few days later was informed this was an Owyhee County matter, rather than an Ada County one, the hay having been taken in Owyhee County. Appellant then contacted his own attorney, Eugene H. Anderson, and told him all the facts and circumstances about the matter that were within his knowledge, which facts and circumstances were related in detail at the trial in this case, both by appellant and by his attorney. His attorney advised him the crime of grand larceny had been committed and to have respondent arrested. At a subsequent conference, his attorney called the Prosecuting Attorney of Owyhee County, Richard Eismann, and made an appointment for January 12, 1953, for appellant to meet him at Murphy, the County seat. Appellant made a full and complete disclosure to Prosecuting Attorney Eismann of all the facts within his knowledge concerning the taking of the hay, as is disclosed both by the testimony of appellant and Mr. Eismann, each relating in detail what facts were disclosed. Mr. Eismann advised appellant that in his opinion the crime of grand larceny had been committed by respondent, warranting prosecution, and he prepared a criminal complaint so charging respondent. Acting upon the advice of his own attorney and the Prosecuting Attorney, appellant signed the complaint.

Thereafter, the sheriff contacted respondent, but did not arrest him and permitted respondent and his attorney to voluntarily appear for arraignment on the charge.

March 2, 1953, preliminary hearing was held before the probate judge of Owyhee County and respondent was discharged, the judge stating he did not want to put the County to the expense of a criminal trial and respondent could seek civil remedy. Respondent thereafter filed this malicious prosecution action against appellant.

Appellant answered and, among other things, set up an affirmative defense of advice of counsel. He, Darrell Smith, and Cecil Cooper filed a cross-complaint seeking $200 as the value of eight tons of baled hay alleged to have been taken, together with punitive damages.

To the cross-complaint, respondent filed an answer and as an affirmative defense, claimed he had purchased the hay from Cooper and there were only 5.51 tons of the value of $250.00 per ton or $137.75, for which he admitted liability.

The matter was tried before a jury and at the conclusion of the evidence, appellant made a motion for a directed verdict against respondent on the ground the evidence conclusively showed appellant acted with probable cause in the institution of the criminal proceeding and that the testimony is uncontradicted that appellant made a complete and fair disclosure of all the facts concerning the taking of the hay, within his knowledge, to his attorney and to the Prosecuting Attorney of Owyhee County and was advised by each of them that, in his opinion, the crime of grand larceny had been committed and there was a valid basis for prosecution. The court denied the motion and submitted the matter to the jury. A verdict was rendered for plaintiff (respondent) in the sum of $3,416.16 actual damages and $1,000 punitive damages and the cross-complainants (appellant, Smith, and Cooper) were granted judgment against respondent in the sum of $137.75.

Thereafter, a motion was made by appellant for a new trial as to the judgment against him on the several grounds set out in the statute, Section R10-602, I.C. Motion for judgment notwithstanding the verdict also was made and both motions were denied by the court. This appeal was taken from the order denying the motion for a new trial.

Appellant alleges as errors the denying of the motion for a directed verdict, the refusing to grant a new trial and to grant judgment notwithstanding the verdict.

In the case of Clark v. Alloway, 67 Idaho 32, 37, 170 P.2d 425, 427, this Court stated:

'In limine, actions for malicious prosecution are not favored in law, hence have been hedged about by limitations more stringent than in the case of almost any other act causing damage to another. In order to recover in such an action the plaintiff must allege and prove (1) that there was a prosecution; (2) that it terminated in favor of plaintiff; (3) that the defendants were prosecutors; (4) that they were actuated by malice; (5) that there was want of probable cause; and (6) the amount of damages that plaintiff has sustained. Russell v. Chamberlain, 12 Idaho 299, 85 P. 926, 9 Ann.Cas. 1173, and cases therein cited; Luther v. First Bank of Troy, 64 Idaho 416, at page 421, 133 P.2d 717.'

This Court has indicated a dismissal upon preliminary examination constitutes sufficient evidence of lack of probable cause to make a prima facie case. Nettleton v. Cook, 30 Idaho 82, 163 P. 300, L.R.A.1917D, 1194; Douglas v. Kenney, 40 Idaho 412, 233 P. 874; Lowther v. Metzker, 69 Idaho 115, 119(4), 203 P.2d 604.

However, appellant claims he is protected in this case, in that he relied upon advice of counsel and acted in good faith upon such advice. He cites the case of Donaldson v. Miller, 58 Idaho 295, 300, 72 P.2d 853, 855, wherein this Court stated:

'In order to sustain the instant action against respondent Schwasinger it was incumbent upon appellant to prove, among other things, that there was, upon the part of respondent Schwasinger, want of probable cause for the prosecution alleged to have been malicious (cases) and in this connection this court has adopted the related general rule that advice of counsel is a complete defense to an action for malicious prosecution, either of civil or criminal actions, where it appears that the prosecution was instituted in reliance in good faith on such advice, given after a full and fair statement to the attorney of all the facts, and the fact that the attorney's advice was unsound or erroneous will not affect the result. (Cases.) In other words, if in the instant case respondent Schwasinger instituted this prosecution in reliance in good faith upon the advice of the prosecuting attorney, and such advice was given after the prosecuting attorney was advised of or had gained full and fair knowledge of all the true facts, respondent Schwasinger would not be liable as for malicious prosecution, even though the prosecuting attorney's advice was unsound or erroneous; that is, even though in actuality there was want of probable cause for the prosecution.

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'* * * There being no dispute as to the facts, nor reasonable doubt concerning inferences drawn therefrom, the court properly entered judgment of nonsuit. (Cases.)

'The rule would seem to be quite general that in an action for malicious prosecutio...