212 P. 861 | Mont. | 1923
delivered the opinion of the court.
This is an action to recover damages for malicious prosecution. The complaint alleges that the defendants, with intent to injure the good name and reputation of the plaintiff, on October 16, 1916, appeared before the county attorney of Teton county and falsely, wrongfully, unlawfully, and maliciously caused to be instituted in the justice’s court of Chouteau township criminal proceedings charging the plaintiff with obtaining from the defendant bank, upon false representations and pretenses, the sum of $3,750; that a warrant was issued out of that court, delivered to the sheriff of Teton county, and on December 17, 1919, plaintiff was arrested and remained in the custody of the officer from that day until the first day of January, 1920. He was brought from the state of Oklahoma, taken into court, and examined upon the charge. After a hearing the justice of the peace, upon motion of the county attorney, discharged him and dismissed the proceedings. Since that time no other complaint has been instituted or prosecuted against him upon that or any other charge.
The cause was tried before the court and a jury. At the end of plaintiff’s case the district court granted a motion for a directed verdict, upon the grounds that the complaint did not state a cause of action, that there was not sufficient evidence to connect the defendant corporation with the institution of- the prosecution, and that as to neither defendant was there sufficient evidence to show that the prosecution was instituted without probable cause or with malice, and directed a verdict in favor of the defendants. Hence these appeals.
The plaintiff’s five specifications of error all relate to the failure of the court to give effect to the evidence touching malice and want of probable cause.
In the spring of 1916 the plaintiff was residing in the town of Fairfield, in Teton county. He conceived the idea of building a gristmill there, but did not have sufficient capital to erect the plant and put it in operation. About this time he met the defendant Elmer Genger, who was the manager of the Townsite Company of Fairfield, a corporation owning property in and about that place. Genger, who later became vice-president of defendant bank, suggested to plaintiff that he could borrow sufficient money to build the gristmill, but that it would be necessary to arrange the matter with Mr. Kelso, who was then in charge of the bank. Prior to this time the plaintiff had been doing his banking business with the Hirsehberg Bank, at Choutau, and was then owing that institution the sum of $4,600, the defendant bank $2,200, besides other debts. After laying his. plans before Mr. Kelso, it was agreed that the bank would loan him the money to erect the proposed mill, the loan to be repaid out of the profits of the mill after operations began. It was estimated that the cost of the mill would be about $1,500. He then asked for an additional loan of $500. Then it was that, upon Mr. Kelso’s request, the statement made the basis of the charge of obtaining money on false pretenses
Let us assume, for the purposes of these appeals, that the. plaintiff had made out a prima facie case. Still he was obliged to go further, and show that the criminal proceeding was infected with malice and was begun without probable cause. In this class of actions probable cause is the foundation of the case. Upon the existence of such belief that question rests. So that, when a party has established want of probable cause, malice will be presumed. (Martin v. Corscadden, 34 Mont. 308, 86 Pac. 33; Beadle v. Harrison, 58 Mont. 606, 194 Pac. 134; Hawley v. Richardson, 60 Mont. 118, 198 Pac. 450;
Notwithstanding the fact that the evidence adduced by the plaintiff proved beyond doubt that the property listed in the statement was of value more than the amount of money advanced by the bank, and that the plaintiff actually had title to the land, still the vital question left was: Did Genger, with malicious intent, give to the prosecuting officer only a partial account of the transaction, and not, full, fair, and truthful information as to the facts? Manifestly, if the county attorney acted upon knowledge independent of that furnished by the defendants, no liability could attach to them. The rule is that, where the prosecuting officer starts a criminal proceeding upon a full and fair statement of the facts from the accuser, he acts for the state; and so he does when he proceeds upon his own personal knowledge. In a case of this nature, the establishment of three propositions is necessary: (1) The fact of the alleged prosecution and the fact that it terminated in plaintiff’s favor. (2) That the defendant did not have probable cause. (3) That he acted from malicious motives. (Hamilton v. Smith, 39 Mich. 222.) “While the courts should not discourage actions for malicious prosecution by establishing harsh rules of evidence, or by the rigid principles of law, by force of which a party may be deprived of an important remedy for a real injury, at the same time all proper guard and protection should be thrown around those who, in obedience to
Generally it may be said that a prosecuting officer is charged with the duty of determining when to commence a particular prosecution, and when to discontinue it. He stands upon a different footing from a defendant, who goes to a justice of the peace, swears out a warrant, and directs the prosecuting officer to see to its execution. The county attorney in this state, not only directs under what conditions a criminal action shall be commenced, but from the time it begins until it ends his supervision and control is complete, limited only by such restrictions as the law imposes. As is said by the superior court of Pennsylvania, in Laughlin v. Clawson, 27 Pa. 330: “If the officers of the state * -* * consider that a given state of facts is sufficient evidence of probable cause, how can a private citizen be said to be in fault in acting upon such facts, and how can the state condemn him to damages for so doing? * * * If such officers make a mistake, it is an error of government itself, and the government cannot allow the citizen to suffer for his trust in its proper functionaries.”
If, therefore, a prosecuting officer incorrectly determines that certain facts given to him constitute a crime, and proceeds to set on foot the necessary action, the informant is not liable, because the fault is not his, but is that of the officer. (Van Meter v. Bass, 40 Colo. 78, 18 L. R. A. (n. s.) 50, and note 90 Pac. 637. In Cohen v. Morgan, 6 Dowl. & R. 8, Abbott, Chief Justice, said: “There is nothing in the defendant’s conduct to show that he was influenced by malice. To support the averment of malice, it must be shown that the charge is willfully false. But here, according to the evidence, the defendant merely related his story to the magistrate, leaving it to him to determine whether the facts .amounted to a felony.” And so of the present case. While the plaintiff charges the defendants with resorting to criminal proceedings for the
The evidence is undisputed, and not susceptible to the inference that Genger concealed from, the public prosecutor some important fact it was his duty to disclose. By the testimony of Mr. Magee, it is also shown that Genger, after answering all his questions, left the case with the county attorney to determine for himself whether there was in fact probable cause for the institution of a criminal action. The question was thus resolved into one of law for the court. (Moore v. Northern Pacific Ry. Co., 37 Minn. 147, 33 N. W. 334; Johnson v. Miller, 69 Iowa, 562, 29 N. W. 743, 58 Am. Rep. 231; Borg v. Bringhurst, 105 Wash. 521, 178 Pac. 450.)
The judgment and order appealed from are affirmed.
Affirmed.