Meinholtz v. Henryetta Gas Co.

JOHNSON, J. This -is an appeal from the district court of Okmulgee county; Mark L. Bozarth, Judge. This action was commenced by the plaintiff in error, who was plaintiff below, against the defendant in error, who was de *90 fendant 'below, to recover damages for false arrest and malicious prosecution. Tlie essential allegations of tbe plaintiff were, in substance, as follows: That in 1916 he was the owner of a one-third interest in a tract of land in Okmulgee county, and was in the peaceful possession and full control and enjoyment of the premises; that while he was aibsent, and without his knowledge and consent, the defendant entered upon his land and laid a pipe line across it, and that when the defendant’s trespass came to the knowledge of the plaintiff he notified it to either compensate him in the reasonable value of the easement, or to remove the gas pipe from his land; that the defendant refused to pay the plaintiff anything for the use of his land, and refused to remove the pipe lines as requested, then the plaintiff notified the defendant that .if it continued in the illegal use of his property without giving him a reasonable compensation, he would abate the nuisance by removing and destroying the pipes or mains, which interfered with and practically prevented the cultivation and enjoyment of the land; that the defendant persisted in its refusal to either pay or remove the pipe line and notified the plaintiff that if he interfered with its pipe line, it would make am example of him; and that after he received this notice, the plaintiff, in order to protect himself in the rightful -use and enjoyment of his land, abated the nuisance by destroying a portion of the pipe line or mains. The plaintiff alleged that thereafter the defendant, acting by its president, John Smith, maliciously and unlawfully caused the plaintiff to be arrested and brought in the custody of an officer along the public highway and streets, a distance of several miles, to the office of a justice of the peace in the city of Henryetta, and after plaintiff’s arrest the president made and caused to be filed an affidavit and information charging the plaintiff with the commission of a crime, that of feloniously and unlawfully breaking and destroying defendant’s mains and pipes for conducting gas, and procured a warrant to be issued by the justice of the peace; that the plaintiff, in order to prevent his incarceration, gave bond for his subsequent appearance to answer the charge. The plaintiff was tried upon the charges preferred against him and was finally acquitted. The plaintiff alleged that his arrest and prosecution were illegal, malicious, and without just or proper cause, and that he suffered great damage, worry, and expense in defending himself against wrongful and unlawful charges; that he was compelled to appear in court and pay out for counsel fees and other expenses approximately $500; that he suffered $200 damages for loss of time and attention from his business, and that on account of the humiliation, shame, and anguish he was damaged in the sum of $10,-000. He further alleged that said arrest and prosecution were inspired on the part of the defendant through malice, ill will, and hatred for the plaintiff, and for the purpose of oppressing, humiliating, and degrading him and injuring him in his good name, and that he was entitled to $15,000 punitive damages. The defendant answered by a general and specific denial, and alleged, in substance, that it consulted with attorneys, including the county attorney, and acted on their suggestions after relating to such counsel all the facts bearing on the case within its knowledge; that the county attorney requested the president of, the plaintiff to have complaint filed before ’ the justice of the peace and cause the arrest of the plaintiff. At the close of the evidence of the plaintiff, the defendant demurred and moved for an instructed verdict in favor of the defendant, which was sustained by the court, whereupon the court charged the jury as follows: “Gentlemen of the jury, the defendant in this case has interposed a motion for a verdict on the evidence as had in this case, and the court finds that a complete defense has been interposed in this case by reason of the defendant consulting with competent attorneys and also with the county attorney, he having first given them the information that was at hand or that he could possibly have gotten after diligent inquiry, and that he acted in good faith on advice of counsel and also on • the advice of the county attorney, which the court holds is a complete defense to this action, the court instructs’ you to return a verdict for the defendant.” And thereafter, the jury returned a general verdict in favor of the defendant, upon which verdict the court accordingly rendered a judgment, to reverse which this proceeding in error was regularly commenced. "Wte will first consider the plaintiff’s second and third assignments of error, which are: (2) The court erred in sustaining the demurrer to the evidence at the close of the entire case; and (3) the court erred in directing the jury to return a verdict in favor of the defendant in error and against the plaintiff in error. court in sustaining the demurrer of the defendant to the evidence and motion for an *91 instructed verdict in its favor is proper in a case where the testimony is in conflict, this court has frequently announced the rule that should be observed by the trial court. One of the more recent cases is that of Ferris et al., Receivers, v. Holiman, Adm., 78 Okla. 251, 190 Pac. 409, where, in paragraph 1 of the syllabus, it is said: “The question presented to a trial court on a motion to direct a verdict is whether, admitting the truth of all the evidence which has been given in favor of the party against whom the action is contemplated, together with such inferences and conclusions as may be reasonably drawn from it, there is enough competent evidence to reasonably sustain a verdict should the jury find in accordance therewith.' Where the evidence is conflicting, and the court is moved to direct a verdict, all facts and inferences in conflict with the evidence against which the action is to be taken must be eliminated entirely from consideration, and totally disregarded, leaving solely the evidence for consideration which is favorable to the party against whom such actioii is leveled.” Shields v. Smith, 50 Okla. 548, 151 Pac. 207; Continental Ins. Co. v. R. C. Chance, 48 Okla. 324, 150 Pac. 114; Harris v. M., K. & T. R. Co., 24 Okla. 346, 103 Pac. 758, 24 L. R. A. (N. S.) 858. The foregoing is the uniform holding of this court, and there are no decisions to the contrary. The question involved in this appeal has frequently been before this court. In a suit for damages for malicious prosecution, where the prosecution of the plaintiff was instigated by the defendant and the defendant in the damage suit seeks to justify the prosecution on the ground that in such prosecution he relied on the advice of a reputable attorney as is urged in the instant case, this court has uniformly announced the rule as follows: “In "an action for malicious prosecution growing out of a criminal prosecution of the plaintiff, where the prosecutor, before instituting the criminal proceedings, obtained the advice of the county attorney, and then and there communicated to him all the facts bearing on the case of which he had knowledge, or could have obtained by reasonable diligence and inquiry, and acted upon the advice given, honestly and in good faith, the absence of malice is established, the want of probable cause negatived, and an action for malicious prosecution will not lie.” El Reno Gas & Electric Co. v. Spurgeon, 30 Okla. 88, 118 Pac. 397: Flamm v. Wineland et al., 41 Okla. 688, 139 Pac. 961; Roby v. Smith et al.. 40 Okla. 280, 138 Pac. 141; Central Light & Fuel Co. v. Tyron, 42 Okla. 86. 140 Pac. 1151; Sims v. Jay, 53 Okla. 183, 155 Pac. 615; Jones Leather Co. v. Woody, 67 Oklahoma, 169 Pac. 878: Allison v. Bryan, 50 Okla. 677, 151 Pac. 610. There is no conflict in the foregoing decisions of this court. The defendant in error seems to rely principally upon the cases of El Reno Gas & Electric Co. v. Spurgeon, and Flamm v. Wineland, supra. These were cases where the trial court sustained the motion of the defendant for an instructed verdict, and in each of these cases this court affirmed the decision of the trial court, but specifically found from the record that the “uncontro-verted evidence showed that the prosecutor laid the facts before competent counsel and acted in good faith upon the advice given.” The case of Roby v. Smith, supra, was a case that went to the jury, and there was a verdict for the defendants, and the judgment was affirmed by this court. The eases of Central Light & Fuel Co. v. Tyron, and Sims v. Jay, and Jones Leather Co. v. Woody, supra, were cases that went to the jury, and there were verdicts in favor of the plaintiffs and they were reversed by this court on appeal. The case of Allison v. Bryan, supra, was a case that went to the jury and resulted in a verdict in favor of the plaintiff and was affirmed by this court on appeal. We think the instant case comes clearly within the rule announced in the latter case, which is stated in syllabus paragraph 1, as follows: “In an action for malicious prosecution, the burden of proof is upon the plaintiff to prove want of probable cause, and where the uncontroverted evidence shows that the prosecutor laid all the material facts within his knowledge before a competent attorney, and acted in good faith upon the advice given, he is exonerated from all liability; but if there is any evidence reasonably tending to prove that the prosecutor instigated the proceedings with a view of gaining some private advantage, or did not give the attorney a full and fair statement of all the ■ material facts in his knowledge, then the case should be submitted to the jury for their determination.” The testimony in this ease shows, without dispute, that the plaintiff was the owner of an undivided one-third interest in a 26-acre tract of land, and was in the exclusive possession of the whole of such tract of land, and that the defendant, without the knowledge or consent of the plaintiff, committed a trespass upon the land by going upon the same and laying certain pipe lines upon the top of the ground to convey its gas to its customers, thereby creating and erecting a nuisance which seriously menaced the use of the premises for agricultural purposes; that when the plaintiff discovered the pipe line upon the premises, he wrote the defendant two letters in which he demanded of the *92 defendant that it either compensate him for the right of way through his land or remove the pipe line from the same. The defendant failed to reply to these letters. Thereafter, the plaintiff called at the offices of the defendant and talked the matter over with its president, Mr. Smith, in which conversation the plaintiff made the same demand he made in his letters. The plaintiff’s demands were that the defendant either pay $1.50 per rod for the right-of way for the pipe line, the price it had paid others, or remove the same from the premises. The defendant failed and refused to do either. These negotiations between the plaintiff and defendant continued over a period of about 30 days before the defendant caused the arrest of the plaintiff and prosecution against him to be commenced. During this period of 30 days, each party consulted reputable attorneys as to their respective rights. The testimony shows that the plaintiff’s attorneys advised him that in the event the defendant refused to compensate him for the right of way or remove its pipe lines from his premises, he had the right under the law to abate the nuisance by removing the pipe lines from his premises; that the defendant’s attorney, including the county attorney, advised Mr. •Smith, president of the defendant company, that if the plaintiff tore up the pipe lines, he would violate the law and would be subject to be prosecuted therefor. The testimony, while in conflict upon the question, tended to show that during the negotiations the relations between the parties became strained and the feeling between them more or less embittered, and especially so on the part of the defendant’s president, Mr. Smith, who 'at all times acted for the defendant, and that both the plaintiff and Mr. Smith made threats, in that the plaintiff told Mr. Smith that if the defendant failed to remove the pipe line or to compensate him, he would blow it up, and- Mr. Smith told the defendant that if he did so, he would send him to the penitentiary ; and the testimony showed that the plaintiff fixed a time at which he would carry out his threat, and that Mr. Smith arranged with an officer to go out there, and he did go out there, reaching the premises a short time after the plaintiff dynamited the pipe lines. Said officer arrested the plaintiff without warrant, and took him before a justice pf the peace, where a preliminary hearing was had, and the plaintiff executed a bond for his appearance before the district court. The prosecution was pending in the district court for a time, and was dismissed by the county attorney, which judgment of dismissal became final. We will not discuss the testimony in the case further than to say that in our opinion the same, taken as a whole, tended strongly to challenge the contention of the defendant. that in causing the arrest of the plaintiff and his prosecution, the defendant acted in good 'faith upon the advice of his attorneys; or, upon the other hand, tended to show defendant was actuated by malice, ill will, and hatred toward the plaintiff. In these circumstances it is the universal hold,ing of this court and is the general rule of law that it became a question for the jury to determine, and not one of law for the trial court; and the trial court, therefore, erred in sustaining the motion of the defendant for an instructed verdict in its behalf, for which error the judgment of the trial court is reversed and the cause remanded for a new trial. . HARRISON, O. J., and RITCHFORD, MIDLER, and KENNAMER, .T,T., concur.