This is an appeal from an order granting the defendant-appellee’s motion for a directed verdict made at the conclusion of plaintiff’s evidеnce in a malicious prosecution action. We affirm.
Facts
Pacific Intermountain Express (P. I. E.) trucking terminal in West Eichfield was experiencing cevere freight shortages in 1969. Defendants-appellees decided to hire an undercover agent to work the loading docks at the terminal facility. Defendants Gene Wеstberg (P. I. E. dis
In January 1972, the plaintiff filed a malicious prosecution action against the dеfendants. After one mistrial, a second jury was impanelled. At the conclusion of plaintiff’s opening statement, defendants moved for a directed verdict рursuant to Civ. R. 50. The Court sustained the motion and entered a final judgment for the defendants. This court reversed and remanded for trial with instructions that:
“If, without the use of testimony actually presented to the grand jury, the plaintiff can prove that defendants maliciously conspired to cause criminal proceedings to be institutеd against him and that there was no probable cause for such proceedings, he is entitled to have this cause submitted to a jury.” Epling v. P. I. E., unreported, Court of Apрeals for Medina County, No. 611, decided April 7, 1976.
Plaintiff now appeals the order granting defendants’ motion for a directed verdict made at the close of plaintiff’s evidence. The plaintiff-appellant claims as error:
“1. The court failed to-use the proper test when it granted the motion for a direсted verdict.
“2. The court erred in taking this case from the jury, inasmuch as the Ninth District Court of Appeals had held that if the- plaintiff could show a malicious conspirаcy and that there was no probable cause, the plaintiffwas entitled to have this canse submitted to a jury. The evidence showed that there was no рrobable cause, the evidence was manufactured.
“3. The court erred in not allowing defendant Eichard Nichols the right to cross-examine his co-defendants.”
Discussion
The first two assignments of error can be combined for discussion since they raise essentially the same arguments. The gist of plaintiff’s contention is that the directed verdict motion was improperly granted (1) because the trial court never indicated it was applying the criteria set forth in Civ. E. 50(A)(4) and (2) the plaintiff’s evidenсe demonstrated a lack of probable cause. We disagree. Civ. E. 50(A)(4) delineates the following criteria :
“When a motion for a directed verdict has been properly made, and the trial court, after construing the evidence most strongly in favor of the party against whom the motion is directed, finds that upоn any determinative issue reasonable minds could come to but one conclusion upon the evidence submitted and that conclusion is adverse to such party, the court shall sustain the motion and direct a verdict for the moving party as to that issue.”
The trial court’s adherence to this criteria is emphatiсally evident from the record. The plaintiff’s evidence failed to show a conspiracy or that the defendants caused the criminal proceeding to be instituted against the plaintiff without probable cause.
Plaintiff also contends that a lack of probable cause was affirmatively demonstrated. Probable cause in an action for malicious prosecution was defined in
Ash
v.
Marlow
(1851),
The heart of this contention is the alleged existence of a conspiracy among P. I. E. officials to manufacture evidence to get Epling and others “off the dock.” Defendant Nichols testified that Mr. Westberg never asked him tо manufacture evidence or frame anyone, including Epling. Nichols also testified he never planted any
An indictment is
prima facie
evidence of probable cause and the plaintiff must bring forward enough evidence to rebut this.
Melanowski
v.
Judy
(1921),
The Ohio Supreme Court has held that an individual who provides a prosecuting officer with information which he believes true is not the cause of the indictment where the officer exercises his uncontrolled discretion to prosecute.
Archer
v.
Cachat
(1956),
Where, as here, the plaintiff claims that P. I. E. had no right to rely on statements of private investigators or undercover agents, we submit that case law does not require them to verify the reports. See,
Campbell
v.
Yellow Cab Co.
(C. A. 3, 1943),
“Before instituting a prosecution, a party is not bound to have evidence that will insure a conviction. He is not required to be absolutely convinced, but to have evidence sufficient to justify an honest belief of the guilt of the accused.” (Page 931.)
As in Widmeyer, supra, P. I. E. had a right to rely on the veracity of the undercover agent’s reports concerning company thefts. Nichols himself testified thаt the reports were accurate representations of events which actually transpired at the P. I. E. dock.
The only active participatiоn by P. I. E. officials was to hire defendant Nichols and submit his reports to the Summit County Prosecutor. Westberg testified he had no personal knowledge of the identity of the thieves apart from that supplied by Nichols. Westberg’s only role was to present Nichols’ reports and some freight bills to the Summit County Prosecutor. Westberg further statеd he never told the prosecutor the number of cartridges stolen and it was the prosecutor’s decision to submit the inf or
William Call, P. I. E. terminal manager, testified he had no communication with the Summit County Prosecutor in the instant case.
Under Ohio law, in a malicious prosecution action, it is the duty of the trial judge to direct a verdict on the issue of probable cause where it appears reasonable minds could reach but one conclusion.
Hruska
v.
Severance
Specialty,
Inc.
(C. A. 6, 1974),
The third assignment of error is overruled. Plaintiff contends that defendant Nichols had the right to cross-examine the eodefendant pursuant to
Rice
v.
Yellow Cab. Co.
(1961),
Summary
We overrule all three assignments of error and affirm the judgment.
Judgment affirmed.