White v. Pacific Tel. & Tel. Co.

• Court: Oregon Supreme Court
• Writing for the Court: Rand
• Citation: White v. Pacific Tel. & Tel. Co., 162 Or. 270, 90 P.2d 193 (Or. 1939)
• Decision Date: 09 May 1939
• Parties: WHITE <I>v.</I> PACIFIC TELEPHONE & TELEGRAPH CO. ET AL.

162 Or. 270

90 P.2d 193

WHITE

v. PACIFIC TELEPHONE & TELEGRAPH CO. ET AL.

Supreme Court of Oregon.

Argued March 24, 1939.

Reversed May 9, 1939.

Rehearing denied July 6, 1939.

Malicious prosecution — Probable cause

1. To maintain an action for malicious prosecution, plaintiff must allege and prove action complained of was commenced and prosecuted by defendants without reasonable and probable cause and that it was malicious.

Criminal law — Search warrant

2. Statute providing that warrant must contain name or description of defendant and statement of crime is valid.

Criminal law — John Doe warrant

3. Where felony was committed and arresting officer had reasonable grounds for believing suspect committed it, arrest of suspect on John Doe warrant was authorized, irrespective of validity of statute providing that warrant must contain name or description of defendant and statement of crime, since no warrant was necessary.

Malicious prosecution — Probable cause

4. Where as result of preliminary examination before magistrate accused is held or committed by the magistrate, magistrate's action is prima facie but not conclusive evidence of probable cause as respects liability for malicious prosecution.

Malicious prosecution — Probable cause

5. The prima facie case for probable cause for criminal prosecution arising as the result of magistrate's holding or committing accused after preliminary examination may be overcome by evidence that action of magistrate was obtained by false testimony or improper means, but unless so overcome becomes conclusive as respects liability for malicious prosecution.

Malicious prosecution — John Doe warrant

6. Where plaintiff after preliminary examination was held and bound over to appear before grand jury by committing magistrate and it was not shown that action taken by committing magistrate was obtained by false testimony, fraud, or other improper means, plaintiff was not entitled to recover for malicious prosecution of criminal action from defendant whose employee signed John Doe warrant and information.

Malicious prosecution — Probable cause

7. Where defendant's employee upon advice of counsel signed information and John Doe warrant under which plaintiff was prosecuted for criminal offense, advice of counsel was sufficient probable cause for the initiation of criminal proceedings against the unknown parties charged in the information.

Malicious prosecution — Probable cause

8. The advice of a practicing attorney, whom client has no reason to believe to be interested, is conclusive of existence of probable cause for initiating criminal proceedings in reliance upon advice if it is sought in good faith and given after full disclosure of facts within accuser's knowledge and information.

Malicious prosecution — Reasonable cause

9. "Reasonable cause" for initiating criminal proceedings is defined as such state of facts in the mind of the prosecutor as would lead person of ordinary caution and prudence to believe, or entertain an honest and strong suspicion, that person charged is guilty as respects liability for malicious prosecution.

Malicious prosecution — Reasonable grounds for arrest

10. Where criminal prosecution was commenced by filing of information by deputy district attorney and issuance by committing magistrate having jurisdiction of crime of a John Doe warrant signed on advice of counsel by defendants' employee, in which warrant arresting officer on his own initiative inserted name of plaintiff, and plaintiff was arrested and after proper examination bound over to appear before grand jury, and there was reasonable ground for arrest and subsequent prosecution of plaintiff notwithstanding information on which arrest was based was obtained from ex-convicts, defendants could not be held liable for malicious prosecution.

Malicious prosecution — John Doe warrant

11. Where robbery was committed and a large sum of money was taken from defendant and defendant's employee signed information and John Doe warrant for initiation of criminal proceedings against unknown parties, defendant could not be held liable for malicious prosecution of plaintiff, notwithstanding that accusation was in fact unfounded.

BAILEY, J., dissenting in part.

  Action on advice of justice of peace, magistrate or layman as
                defense in action for malicious prosecution, note, 12 A.L.R
                1230. See, also, 18 R.C.L. 49 (6 Perm. Supp., 4410)
                  38 C.J. Malicious Prosecution, § 45
                

In Banc.

Appeal from Circuit Court, Multnomah County.

JACOB KANZLER, Judge.

Action for malicious prosecution by Coe C. White against the Pacific Telephone & Telegraph Company, a corporation, and another. From a judgment for the plaintiff, defendants appeal.

REVERSED. REHEARING DENIED.

Howard T. McCulloch, of Portland (Carey, Hart, Spencer & McCulloch, of Portland, on the brief), for appellants.

Wm. J. Crawford and Barge E. Leonard, both of Portland (Eugene C. Libby, of Portland, on the brief), for respondent.

RAND, C.J.

This is an action for malicious prosecution of a criminal action in which the plaintiff was charged with the crime of assault and robbery, being armed with a dangerous weapon.

The complaint, in substance, alleged that the Pacific Telephone and Telegraph Company and R.V. Jenkins, one of its employees, commenced and prosecuted the action complained of; that plaintiff was arrested in said action, bound over to the grand jury and confined in jail until discharged upon a not true bill returned by the grand jury, and that the prosecution was malicious and without probable cause.

The trial resulted in a verdict and judgment in favor of the plaintiff and against both defendants. From this judgment, defendants have appealed.

1. In order to maintain an action for malicious prosecution of a criminal action, it is necessary for the plaintiff to allege and prove that the action complained of was commenced and prosecuted by the defendants without reasonable and probable cause and that it was malicious. The defendants contend that neither of said elements were proved in the instant case and, for that reason, it was error for the trial court to refuse to grant defendants' motion for a directed verdict.

The plaintiff bases his right to recover in this action upon certain allegations contained in the complaint which, in substance, are as follows: That on January 12, 1937, the defendant Jenkins, while acting within the scope of his employment, signed and verified an information before Judge Cohn, municipal judge of the city of Portland and ex officio a justice of the peace, charging that on January 9, 1937, the crime of assault and robbery, being armed with a dangerous weapon, was committed by John Doe and Richard Roe, whose true names were unknown, and caused a warrant to be issued thereunder for the arrest of said unknown parties, intending thereby that the plaintiff, although not named in the information, should be arrested as one of said parties and be prosecuted for said crime, and that, pursuant thereto, the plaintiff was arrested and thereby sustained the damage alleged in the complaint.

The evidence shows, and it is undisputed, that at 9:40 on Saturday morning, January 9, 1937, three days before this information was filed, two masked men armed with revolvers entered the office of G.G. Lundberg, the local cashier of the defendant company, located on the sixth floor of the building occupied by the defendant company in the city of Portland and, by force and violence, robbed him and his assistant of the sum of $5,484.50 in moneys belonging to the defendant company and made their escape from the building by means of an inside fire-escape leading to a door opening on the street, which they unlocked. While perpetrating the robbery, the men forced Lundberg and his assistant into a steel vault and turned the combination, locking them inside the vault. Another employee of the defendant company, who entered the room while the crime was being committed, was bound and tied with a wire which one of the robbers took from his pocket. They then made their escape with the money, by passing through another office leading to a fire-escape, without being seen by any other employee of the defendant company, and have never been apprehended for the crime, and their identity was unknown when the information was signed and verified by Jenkins.

As a part of his case in chief, the plaintiff called Clarence A. Potts, a deputy district attorney, and he testified as follows:

"Q. Mr. Potts, I will ask you to state what official position you occupy in the County of Multnomah, State of Oregon? A. Deputy district attorney. Q. How long have you been deputy district attorney? A. Oh, it will be four years January 17th, next year. Q. I will ask you if you were acting as deputy district attorney for the County of Multnomah, State of Oregon, on or about the 12th day of January, 1937? A. I was. Q. And where were you assigned for duty at that time? A. Down at the police station. Q. Mr. Potts, I hand you Plaintiff's Exhibit 2, and calling your attention to that portion known as an information, I will ask you to state whether or not you drew the original of the certified copy which I have handed to you? A. I did. Q. Did you draw it on the date it bears? A. I did. Q. And upon whose information did you draw this? A. On the information of the police department and Mr. Jenkins. Q. Ray V. Jenkins? A. That is correct. Q. And he related the facts to you upon which you based this information? A. That is correct. Q. I will ask you to state whether or not Mr. Jenkins at the time on January 12, 1937, when you drew this information, if he made a disclosure to you mentioning the name of Coe C. White in connection with this information? A. Coe C. White was never mentioned at the time this was drawn or prior to the time this was drawn. I didn't hear the name Coe C. White until some time after this information had been filed."

From this testimony of Mr. Potts,...