118 P.2d 388 | Okla. | 1941
The defendant in error, hereinafter referred to as plaintiff, commenced this action to recover damages against the plaintiff in error, hereinafter referred to as defendant, on account of his prosecution in the court of common pleas of Tulsa county upon a criminal charge of having fraudulently obtained the sum of $25 from the defendant by executing and delivering to said defendant a bogus personal check.
The criminal action was commenced by the filing of an information subscribed and sworn to by the defendant, and its trial resulted in a dismissal. In his petition filed herein plaintiff alleged in substance that the defendant procured the institution and prosecution of said action maliciously and without probable cause by misrepresenting or withholding from the county attorney of Tulsa county the true facts concerning his execution and delivery of the check to the defendant.
The defendant denied generally the allegations of plaintiff's petition, and by way of special answer pleaded that the plaintiff had in fact defrauded him as charged in the criminal action and that the information filed therein was issued with the approval of the county attorney after he had fully and fairly disclosed to said official all of the facts in connection with said cause.
At the trial there was no dispute as to the fact that the check involved in the former criminal action against the plaintiff was executed and delivered by him to the defendant. It was admitted that when presented to the bank upon which it was drawn the check was dishonored because plaintiff had no account in said bank. On the basis of evidence consisting principally of the testimony of the two parties to the action and the county attorney of Tulsa county, the controversy was made to hinge upon the character of the transaction of which the check was the only documentary evidence. Upon this issue the testimony of the plaintiff and defendant was in direct conflict. The plaintiff claimed that the check was executed and delivered to the defendant, at the latter's request, merely to evidence a loan of money to him by the defendant with knowledge on the part of said defendant that he had no account with the bank on which the check was drawn. The defendant, on the other hand, testified that the check was just what it purported to be and was accepted by him in return for cash he delivered to the plaintiff upon the latter's false representation that it would be honored by the drawee bank. It also appears from the evidence that before the institution of the criminal action both the plaintiff and defendant related their conflicting versions of the transaction to the county attorney, who did not approve of filing said action until after he had confronted the defendant with plaintiff's version and had been reassured by him that the check was not given to evidence a loan as the plaintiff claimed.
During the trial the court overruled a demurrer interposed by the defendant to plaintiff's evidence, and after both parties had rested, denied the defendant's request for a directed verdict. Upon submission of the cause to the jury under instructions, to some of which the defendant objected, a verdict *595 was returned in favor of the plaintiff for the sum of $400, and judgment was entered accordingly. Thereafter, the defendant filed two separate and consecutive motions for a new trial, the latter being based upon the ground of newly discovered evidence. After the trial court entered its order overruling both of these motions, the defendant perfected this appeal.
In seeking to demonstrate that the trial court erred in overruling his demurrer to plaintiff's evidence and refusing to direct a verdict in his favor, the defendant first contends that the evidence wholly fails to establish that he acted maliciously and without probable cause in swearing to the information charging the plaintiff with having defrauded him by means of the $25 check. He makes no claim that the evidence establishes plaintiff's guilt of this charge, but points out that the existence of probable cause is not necessarily dependent upon such proof, and centers his argument upon the question of whether or not he was shown to have been without just cause for a reasonable belief in plaintiff's guilt. The defendant's contention that this question can correctly be answered only in the negative is based upon the hypothesis that, according to the proof, the criminal charge was filed against the plaintiff only after the material facts bearing upon his guilt or innocence of said charge had been disclosed to the county attorney of Tulsa county, and said official had approved such action. Ordinarily, one who institutes legal proceedings against another in good faith and upon the advice of a licensed attorney after a full and truthful disclosure of the material facts, within his knowledge or reasonably obtainable, concerning the controversy involved, may be said to have probable cause for so acting. Williams v. Frey,
It is also contended that the 14th in the list of instructions given the jury was erroneous. It is said that by said instruction the court left to be determined by the jury the issue of whether or not the defendant had probable cause for instigating the plaintiff's allegedly malicious prosecution and it is pointed out that the existence of probable cause is always a question of law for the court to decide. It appears that in the allegedly erroneous instruction the jury was first told in substance that the facts relied upon to furnish probable cause for a prosecution must be such as would lead a man of ordinary caution and prudence to believe and entertain an honest and strong suspicion that the person prosecuted was guilty of the offense with which he was charged. The instruction then stated that "whether the facts known to the defendant, Drakos, at the time he went to the county attorney's office, were such as to lead him, as a man of ordinary caution and prudence, to believe and entertain an honest and strong suspicion that plaintiff was guilty of defrauding him, by means of a bogus check, is submitted to the jury to be decided as a question of fact on the issue as to whether there was or was not probable cause for Drakos' act." It will thus be seen that the court neither made the jury's finding under this instruction conclusive as to the existence of probable cause nor submitted said issue to it for exclusive determination as an unmixed question of fact. Of course the usual and most frequently approved method of determining the issue of probable cause, where there is a conflict in the evidence concerning it, is for the court to charge the jury under what combination or combinations of circumstances that may be found under the evidence the defendant did or did not have probable cause for initiating the proceedings. Hopkins v. Stites,
The defendant also asserts that the trial court erred in refusing to allow the introduction of various bits of testimony during the trial and in overruling the motion he filed for a new trial on the ground of similar evidence he claims to have secured after the trial. By such evidence his counsel say they could have established that the check in question was not the only bogus check the plaintiff had ever given and that upon other occasions the plaintiff had given such checks at other places of business in Tulsa, besides the one which the defendant operated. Such evidence was clearly inadmissible and would not have tended to prove or disprove any of the issues in the present case. The defendant's allegation of error in this connection is based upon the claim that the evidence in question would have shown that the plaintiff made a practice of passing bogus checks. While proof that the plaintiff in an action for malicious *597
prosecution has a bad reputation in the community in which he lives is often admitted in mitigation of claimed damages to his reputation (Ginsberg v. Murphy,
Under the fourth and last proposition urged by the defendant for reversal of the judgment entered herein, it is contended that another reason the demurrer to plaintiff's evidence should have been sustained is that said evidence established no damage to the plaintiff by reason of having been prosecuted on the bogus check charge, and that for the same reason the court erred in directing the jury by its 16th instruction that plaintiff might be awarded damages for such items as injury to his reputation, personal mortification, etc. The defendant's argument overlooks the fact that in cases of the malicious prosecution of criminal proceedings as in actions for defamation, the plaintiff may recover for injuries such as mental or emotional distress and injury to reputation which necessarily result from such wrongful acts without specific proof that same have resulted in such harm. Olson v. Haggerty,
As we have found no cause for reversal in any of the alleged errors relied upon by the defendant, the judgment of the trial court is hereby affirmed, and judgment is hereby rendered against the sureties on the defendant's supersedeas bond as requested by the plaintiff.
WELCH, C. J., and OSBORN, BAYLESS, GIBSON, HURST, and ARNOLD, JJ., concur. CORN, V. C. J., dissents. RILEY, J., absent.