Saner v. Bowker

MR. JUSTICE HOLLOWAY delivered the opinion of the court. So far as material here, the facts surrounding this controversy may be stated briefly as follows: On January 1, 1922, [466] plaintiff was indebted to defendant, Bowker, an innkeeper, in the sum of $128.95 for board and rooms furnished by Bowker at his hotel. Bowker had also cashed a check drawn by Saner for $10, which check was returned not paid for want of funds. Bowker verified a complaint before a justice of the peace, charging Saner with issuing a check “without sufficient funds” and with “defrauding an innkeeper.” Apparently the two crimes were charged in one complaint. A warrant was issued and Saner was arrested, but he paid to the officer the full amount of Bowker’s claim — $138.95—together with the costs, and was released, and the criminal proceeding was dismissed. Later this action was commenced by Saner to recover damages for malicious prosecution. Issues were joined and the cause was tried, resulting in a verdict for plaintiff, and defendant appealed from the judgment entered thereon, after his motion for a new trial had been denied. 1. It is argued that the complaint fails to state that the criminal action was terminated in plaintiff’s favor. It is alleged that plaintiff “was released at the request of defendant, and thereupon the plaintiff was discharged by said justice, since which time the defendant has not prosecuted said complaint, but said complaint has been dismissed, and the said action against plaintiff finally terminated.” This is sufficient under practically all of the authorities. (18 R. C. L., p. 23, sec. 12; 26 Cyc. 58.) 2. The criminal action was one which might be compromised (see. 12220, Rev. Codes 1921), and it is the general rule that where a defendant, charged with a crime which may be compromised lawfully, voluntarily pays the amount involved in the criminal case for the purpose of settlement, and the charge is withdrawn or dismissed in consequence thereof, the payment is a tacit admission that there was probable cause for instituting the proceeding; hence an action for malicious prosecution will not lie. (Morton v. Young, 55 Me. 24, 92 Am. Dec. 565; Sartwell v. Parker, 141 Mass. 405, 5 N. E. 807; Wickerstrom v. Swanson, 107 Minn. 482, 120 N. W. 1090; [467] Singer Sewing Machine Co. v. Dyer, 156 Ky. 156, 160 S. W. 917; Gallagher v. Stoddard, 47 Hun (N. Y.), 101; Emery v. Ginnan, 24 Ill. App. 65; Waters v. Winn, 142 Ga. 138, Ann. Cas. 1915D, 1248 L. R. A. 1915A, 601, 82 S. E. 537; Campbell v. Bank & T. Co., 30 Idaho, 552, 166 Pac. 258; First State Bank v. Denton, 82 Okl. 137, 198 Pac. 874; White v. International Text-Book Co., 156 Iowa, 210, 42 L. R. A. (n. s.) 346, 136 N. W. 121; Baxter v. Gordon Ironsides Co., 13 Ont. L. R. 598; 7 Am. & Eng. Ann. Cas. 452; Russell v. Morgan, 24 R. I. 134, 52 Atl. 809; Welch v. Cheek, 125 N. C. 353, 34 S. E. 531; 18 R. C. L., p. 25, sec. 13.) Viewing the evidence in the light most favorable to plaintiff, it would appear that, if the rule stated above had been observed upon the trial of this case, a different result would have been reached. The rule was not observed, however, for at the request of the defendant the court in its instruction No. 11 stated the rule substantially as given above, but added thereto the following: “Provided you believe from a preponderance of all of the evidence that the defendant herein acted in good faith and with probable cause.” In other words, this instruction submitted to the jury the question of want of probable cause, notwithstanding plaintiff had voluntarily settled the criminal case. The instruction is self-contradictory and erroneous, but the jury was bound by it, .and defendant, who caused it to be given, cannot complain. Under the theory of the case as thus presented to the jury, a finding of want of probable cause might be justified. Plaintiff testified that he had an agreement with the defendant for credit at the hotel, and, if the jury believed this testimony, the offense — defrauding an innkeeper — could not have been c-omriiitted (secs. 7684 and 11579, Rev. Codes 1921), and defendant could not have had probable cause, or any cause, for believing that Saner was guilty. Plaintiff testified further that, when the check was returned dishonored, lie offered to pay Bowker the amount of it, but Bowker replied that the amount had already been charged to Saner’s account, and the [468] fact that the amount is included in a bill submitted by Bowker to Saner before tbe criminal proceeding was instituted lends support to the testimony. Under these circumstances, the trial court did not err in refusing a new trial. The judgment is affirmed. ’Affirmed. Mr. Chief Justice Callaway and Associate Justices Cooper, Galen and Stark concur.