Thompson v. General Finance Co.

• Decision Date: 11 April 1970
• Docket Number: No. 45586,45586
• Citation: 468 P.2d 269,205 Kan. 76
• Parties: Tommy H. THOMPSON, Appellee, v. GENERAL FINANCE COMPANY, Inc. and C. B. Pillsbury, Appellants.
• Court: Kansas Supreme Court

Page 269

468 P.2d 269

205 Kan. 76

Tommy H. THOMPSON, Appellee, v. GENERAL FINANCE COMPANY, Inc. and C. B. Pillsbury, Appellants.

No. 45586.

Supreme Court of Kansas.

April 11, 1970.

Rehearing Denied May 11, 1970.

Syllabus by the Court

1. A person seeking to recover for false arrest or false imprisonment must prove that he was unlawfully caused to be arrested by the defendants, and, though it is not necessary that the arrest was directly ordered by the defendants, it must appear that the defendants instigated it, assisted in the arrest, or by some means directed, countenanced or encouraged it.

2. In an action for false arrest or false imprisonment, all that is necessary is that the individual be restrained of his liberty without any sufficient legal cause therefor, and by words or act which the one being restrained fears to disregard. The action of false imprisonment always includes the element of an assault in a technical sense.

3. Malice and wilfulness are not essential elements of false arrest or false imprisonment, and the motives of the defendants, whatever they may have been, are not material so far as a right of action is concerned and can never be material, except where something more than compensatory damages is sought. If exemplary damages are sought, proof of malice in making an arrest or imposing restraint is competent.

4. Under our code of civil procedure where a party has a cause of action containing all the elements of both malicious prosecution and false arrest or false imprisnment, as these actions were understood at common law, he is not bound as he was at the common law to prosecute for the one of for the other, but he may prosecute for his whole cause of action in one proceeding.

5. To maintain an action for malicious prosecution the plaintiff must prove that the defendants instituted the proceeding of which complaint is made, that the defendant in so doing acted without probable cause and with malice, that the proceeding terminated in favor of the plaintiff, and that the plaintiff sustained damages. The plaintiff must prove both malice and lack of probable cause, and unless both are proved, the plaintiff's claim must fail.

6. In actions for malicious prosecution, the inquiry as to the want or existence of probable cause is limited to the facts and circumstances which were apparent at the time the prosecution was commenced.

7. Where the defendants on appeal in a malicious prosecution action rely upon the advice of private counsel as a defense for the first time, it is unavailing, the matter never having been made an issue by the pleadings or the pretrial order in the trial court.

8. In a malicious prosecution action where the defendants assert reliance upon the advice of private counsel to show probable cause for instituting the criminal action, they must show that private counsel made an independent investigation and obtained the information upon which he advised the defendants.

9. Where the trial court instructs the jury: 'The advice of the county attorney as to the institution of a criminal proceeding, sought and acted upon in good is a complete defense for malicious prosecution, but this is only so when all the facts known to the defendant, and all the facts of which he could learn by reasonable effort, have been fully and truthfully given to such official,' the instruction becomes the law of the case where the defendants failed to distinctly object in the trial court to the inclusion of the 'reasonable effort' doctrine set forth therein.

10. Where the facts in a malicious prosecution action are in dispute, and there is evidence from which the jury might find that the complaining witness did not truthfully disclose all the facts known to him, or which he could learn by reasonable effort, to the county attorney, the question is properly one for determination by the jury.

11. No party may assign as error the giving or failing to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating the matter distinctly to which he objects and the grounds of his objection, unless the instruction is clearly erroneous. (K.S.A. 60-251(b).)

12. Where the facts in a malicious prosecution action are in dispute, questions such as malice, probable cause, or whether the evidence discloses a legal defense to the action, must be submitted to the jury under appropriate instructions defining the law applicable to the rights of the parties under all of the evidence of record.

13. Where one is charged with a felony, the finding of an examining magistrate that a criminal offense has been committed, and that there is probable cause to believe the one charged committed the crime, is only prima facie evidence of probable cause in an action for malicious prosecution brought by the defendant in the criminal action against the prosecuting witness.

14. The failure of the presiding judge in a criminal action, where the defendant is discharged, to assess costs against the complaining witness in the criminal action in accordance with K.S.A. 62-1902 cannot be construed as a negative finding of fact that the prosecution was not commenced without probable cause, and was not commenced from malicious motives, under circumstances more particularly related in the opinion.

15. In a malicious prosecution action the determination of probable cause is only a question of law for the determination of the court when the facts are not in dispute, but if the facts tending to establish the existence or want of existence of probable cause are in dispute, then it becomes the duty of the trial court to submit the question to the jury.

16. In a malicious prosecution action where the pretrial order specified the probable cause issue as a question of fact to be determined at the trial, and the question was submitted to the jury upon appropriate instructions to determine the issue as a question of fact, the defendants cannot on appeal assert for the first time, where the facts are in disupte, that the probable cause issue is strictly one of law for the decision of the court upon a theory of law contrary to that asserted in the trial court.

17. In a malicious prosecution action malice may be inferred where a person acts without probable cause in instituting a criminal proceeding against another; that is to say, want of probable cause may be evidence of malice.

18. Under K.S.A. 60-249(b) the trial court is given discretionary powers in the area of special questions, and it may refuse to give special questions even though they relate to issues of fact raised by the pleadings or evidence in the case, absent a showing that the trial court abused its power of discretion.

19. Where exhibits consisting of handcuffs and leg irons are identified as similar to those used when the plaintiff in a malicious prosecution action was manacled at the time of his arrest, and the trial court sustains an objection to their admission in evidence, the record, as more particularly reviewed in the opinion, discloses no substantial prejudice to the defendants by the offer of such exhibits in evidence.

Jerry G. Elliott and Otto J. Koerner, Wichita, argued the cause and were on the brief for appellants.

Edgar Wm. Dwire, Wichita, argued the cause and was on the brief for appellee.

SCHROEDER, Justice.

This is an action for malicious prosecution and false arrest. The matter was tried to a jury which returned a general verdict for the plaintiff in the amount of $10,000 actual damages and $5,837.50 punitive damages. Appeal has been duly perfected by the defendants.

The appellants assert ten points for a reversal of the judgment, many of which hinge upon a determination as to whether a full and truthful disclosure was made by the complaining witness to the county attorney's office when the criminal charge was initiated.

The facts giving rise to this action are rather complex and the evidence reflects considerable dispute.

In skeleton form with oversimplification it may be preliminarily stated the plaintiff was charged criminally with concealing mortgaged property, extradited from Colorado, bound over at preliminary hearing, and went to trial in the district court of Sedgwick County, Kansas, under criminal statutes that were repealed several months prior to the filing of the complaint. At the close of the state's evidence the plaintiff was discharged, and thereafter he filed this malicious prosecution and false arrest suit.

On the 22nd day of March, 1965, Tommy H. Thompson (plaintiff-appellee) purchased from Honest John's Furniture Store the following used items of merchandise: '2 Pc. Sect., 2 Occ. Chair, 3 Tables, 2 lamps, 1 Pole Lamp. Range O'Keefe & Merritt, 'Refrig. Kelvinator', 7 Pc. Dinette, Chest, Wringer Washer, 2 Pc. Br. Spg. & Matt., Childs Rocker.' The purchase was made on a conditional sales contract which discloses a cash price of $489.80; a down payment of $50.80; a principal and unpaid balance of $439; finance charges of $145.28; a time balance of $584.28; a time sale price of $635.08; and called for thirty-six monthly payments of $16.23 commencing May 1, 1965. The reverse side of the contract shows it was assigned without recourse to General Finance Company, Inc.

C. B. Pillsbury is the president, director and a stockholder of General Finance Company, Inc. Both were named parties defendant and are the appellants herein. The petition alleged Pillsbury was acting individually and as agent for General Finance.

On the 1st day of October, 1965, Mr. Thompson moved to Denver, Colorado, and on the 7th day of October, 1965, he notified General Finance he had moved to Denver. He left all of his furniture, including some which was not listed in the foregoing conditional sales contract, in Wichita at the home of his brother-in-law, Charles Beagle. Mrs. Beagle and Mrs. Thompson were sisters. In November, 1965, Mr. Beagle testified he sold part of the furniture, but Thompson continued to make payments...