Patrick v. Wigley, 206 Okla. 194 (Okla. 1952)

GIBSON, J.

This is an action for malicious prosecution of a criminal proceeding. Defendant in error was plaintiff in the trial court, and in a jury trial he obtained a judgment against defendant, who appeals.

Defendant was a contractor living in Albuquerque, New Mexico. He owned a Twin Engine Cessna Airplane, which he had taken over on a bad debt. He had no use for a plane of that size and decided to sell it. Plaintiff was a licensed pilot and had flown the plane for the former owner. He convinced the defendant that there would be a better opportunity to make a sale in Oklahoma City than in Albuquerque.

The parties entered into a written contract on June 7, 1946, wherein defendant advanced plaintiff $250 to be used in transporting the plane to Oklahoma City where plaintiff was to undertake to sell the same for not less than $12,250. It was agreed that at Oklahoma City the plane “will be stored and that part of said amount ($250) will be used for the purpose of cleaning and reconditioning said plane and placing same in a highly serviceable condition for sale.” It was further agreed that if the plane should be sold for more than $12,250 the parties would divide said amount and share alike after deducting expenses. Plaintiff flew the plane to Oklahoma City where it was stationed at Nuchols airport, and advertised for sale. In August defendant sent his attorney, Mr. Mowrey, to Oklahoma City to investigate the status of the plane. The investigation revealed that there were unpaid bills assessed against the plane by the airport for expenses incurred by plaintiff and that it had been used approximately 25 hours, judging from the amount of gasoline supplied by the airport. Plaintiff did not admit to the attorney that he had been flying the plane for hire, but stated that he was in financial straits and could not pay any amount that he might owe defendant. Following Mr. Mowrey’s departure and on August 27, 1946, plaintiff filed suit against defendant alleging a salary due and certain expense money advanced, all in the sum of $950. ■ He had the plane attached. Upon being advised of this suit defendant, Patrick, with his attorney, came to Oklahoma City, where they conferred with a member of the

Oklahoma county bar. These gentlemen had information that plaintiff had been flying the plane for hire and had collected various sums of money therefor and among such items was one for $23.50. The attorneys advised defendant that on the information at hand plaintiff was guilty of embezzlement and could be criminally prosecuted. It was suggested that they call in plaintiff’s attorney, Mr. Berry, and advise him of these facts, and when so advised it was possible that Mr. Berry would cause the attachment case to be dismissed. Such a conference was had. The evidence as to what transpired is in sharp conflict. Defendant and his attorneys testified that they told Mr. Berry that they thought his client had misrepresented the facts to him, and that if Berry knew all the facts about his client that he could not want to go on with the attachment case, and that Berry replied that he thought his client had a good case. Mr. Berry further testified:

Defendant and his attorneys contradicted this testimony.

On the same day, September 5, 1946, defendant and his two attorneys went before the county attorney to complain of plaintiff’s acts. They conferred with two assistant county attorneys. Following that conference the county attorneys’ office prepared an information charging plaintiff with the offense of embezzlement of $23.50. Defendant verified the information before a justice of the peace; a warrant was issued and plaintiff was arrested and placed in jail, where he was confined for several hours when appearance bond was furnished. On September 13, 1946, a preliminary hearing was held, in which plaintiff was represented by his counsel and plaintiff was bound over for trial in district court. There plaintiff filed a motion to quash and set aside the information on the ground that no competent proof was introduced at the preliminary to show an illegal act on the part of plaintiff as defendant therein. The case was submitted to a judge of the district court on the justice’s files and a transcript of testimony taken at the hearing and after argument of counsel the motion to quash was sustained and plaintiff was discharged on September 23, 1946. On that same day plaintiff filed his petition in the present case.

Plaintiff’s petition states two causes of action, one for actual damages and the second for punitive damages. An amended petition was filed and issue was joined. During the trial the court sustained a demurrer to the cause of action for punitive damages. Judgment was rendered on a jury verdict awarding plaintiff $3,500.

In his brief defendant bases his entire argument on the proposition that the trial court erred in not rendering judgment for him on his request for peremptory instructions. It is contended that defendant established a complete defense to a suit for malicious prosecution on the ground that probable cause was shown to exist.

Defendant cites Southern Ice & Utilities Co. v. Bench, 179 Okla. 50, 64 P. 2d 668. Therein we said:

“In an action for malicious prosecution, where the material facts proving probable cause are not disputed, and established probable cause for the institution of the prosecution, the basis of plaintiff’s suit, the court erred in refusing to instruct a verdict for the defendants.”

Defendant quotes from our opinion in Williams v. Frey, 182 Okla. 556, 78 P. 2d 1052:

Other cases bearing on defendant’s reliance upon advice of counsel and good faith are cited: El Reno Gas & Electric Co. v. Spurgeon, 30 Okla. 88, 118 P. 397; Bryan v. Lee, 123 Okla. 22, 252 P. 2; Roby v. Smith, 40 Okla. 280, 138 P. 141; Empire Oil & Refining Co. v. Cambron, 172 Okla. 202, 44 P. 2d 972; Sims v. Jay, 53 Okla. 183, 155 P. 615.

In answer plaintiff says:

In support of his proposition plaintiff cites: Empire Gas & Fuel Co. v. Wainscott, 91 Okla. 66, 216 P. 141; Drakos v. Jones, 189 Okla. 593, 118 P. 2d 388; General Motors Acceptance Corp. v. Davis, 151 Okla. 255, 7 P. 2d 157.

In Empire Gas & Fuel Co. v. Wamscott, supra, we said:

Plaintiff says that defendant and his attorneys did not fully and fairly communicate all of the material facts to the county attorney in instigating this prosecution.

The record reflects that plaintiff did not advise the county attorney’s assistants that they had informed plaintiff’s attorney that unless the attachment was discharged he would have plaintiff thrown in jail. The evidence was in conflict as to whether that conversation had occurred. Plaintiff did not advise the county attorney that he had made no demand on plaintiff for payment of the $23.50 allegedly embezzled; nor was the county attorney advised that defeñdant had prepared and would file a cross-petition in the civil suit including therein the amount allegedly embezzled. It may be that if the county attorney had been advised that the same money item being made the basis of the criminal action was being included in a cross-petition to be

filed immediately in a civil action between the parties that he would have refused to file the criminal case but would have preferred leaving the parties to their respective remedies in the civil suit. One assistant county attorney testified that he knew an attachment suit was pending but it is not revealed that he was informed that plaintiff in that suit was the plaintiff herein.

The reason for the rule announced in the above cases cited by defendant as to probable cause is based on factual situations where probable cause is established by “undisputed evidence”, as in the Southern Ice & Utilities Co. case and the El Reno Gas & Electric Co. case, supra, or is “conclusively shown”, as in the case of Roby v. Smith, supra. In all such cases it was found that all material facts within the knowledge of the prosecuting witness were fairly and fully disclosed to prosecuting counsel, and that the resultant prosecution was instituted in good faith.

Most of the above cases cited by defendant were cited with approval by this court in the case of Drakos v. Jones, supra, and were distinguished from the cases cited by plaintiff. In the Drakos case, with reference to the cases upon which defendant relies, we said:

Then follows citation to the identical cases cited by plaintiff herein. The Drakos case is similar to the instant case in many respects. There as here the error complained of was the denial of defendant’s request "for a directed verdict, such request being predicated on a full and fair disclosure of facts to the county attorney and existence of probable cause. In both cases a jury by its verdict indicated a belief that defendant concealed material facts from the county attorney.

We have reviewed the evidence in this case. There were certain facts, material in a malicious prosecution case, admittedly within the knowledge of defendant and his attorneys, that were not revealed to the county attorney. There were other facts which were material if found to be true but the evidence was in conflict as to whether such facts existed. Under this state of the record it cannot be said that probable cause was established by “undisputed evidence” as was shown in various cases cited by defendant. Under this record the case was properly submitted to the jury. With reference to the contentions of the parties in this case we find the law summarized in Allison v. Bryan, 59 Okla. 677, 151 P. 610, wherein this court said:

And where the evidence is conflicting on the question of probable cause, the court should submit to the jury for determination the matter of the weight of the evidence, with appropriate instructions as to what facts would or would not constitute probable cause. Empire Oil & Refining Co. v. Cambron, supra. This case was so submitted. Neither party raises any question as to the propriety of the given instructions. Under the record before us the trial court did not commit error in overruling the request of defendant for peremptory instructions, and since this is the sole question submitted for our consideration, the judgment is affirmed.

HALLEY, V.- C. J., and WELCH, CORN, DAVISON, and O’NEAL, JJ., concur. JOHNSON and BINGAMAN, JJ., dissent.