Action for damages for a malicious prosecution. There was a directed verdict for the defendants, and plaintiff appeals. The sole question presented here is: "Is there sufficient evidence to submit to a jury the question of whether or not the appellees instigated or procured the criminal prosecution of the appellant?" This issue being primarily factual we must examine the facts in the light most favorable to appellant. Lawson v. Fordyce, 234 Iowa 632, 12 N.W.2d 301; Comfort v. Continental Casualty Co., 239 Iowa 1206, 34 N.W.2d 588.
On January 3, 1946, appellant was arrested under a Federal warrant which charged him with theft from the United States mail. The complaint was signed by Cloid I. Level, assistant United States district attorney.
On January 4, 1946, an information was filed in the Des Moines Municipal Court charging appellant with obtaining money by false pretenses from the Boss Hotels Company. This information was signed by C.P. Donovan, a United States *Page 608 postal inspector. This charge was dismissed February 15, 1946, at the request of the said Donovan.
On April 24, 1946, the Federal grand jury returned three indictments against appellant. In one, he was charged with uttering a forged United States money order. In another, by Count I, he was charged with altering a United States check, and by Count II, with uttering the same. The third indictment charged him with the theft from the United States mail of a $50 check, payable to one Mary Jane Toom, while Count II charged the theft of a check from the mail, payable to one Mary B. Horton. On November 21, 1946, all three indictments were dismissed by the court upon the recommendation of the district attorney.
The facts and circumstances surrounding the issuing of the complaint by Mr. Level, the information in municipal court by Mr. Donovan, and the three indictments, particularly Count I of the third indictment mentioned above, all of which are in some degree connected with the Toom check, furnish the basis for this action.
Appellant, an honorably discharged veteran, was during the time in question residing at the Brady Apartments in Des Moines and employed at the United States Employment Service (USES). Appellees Boss Hotels Company and Edwin A. Boss and Ethel M. Boss, a corporation and a partnership, were the owners and operators of Hotel Savery in Des Moines; appellee E. Arthur Johnston was the assistant manager of Hotel Savery.
Donovan was investigating a series of mail thefts, which began coming to light in July 1945, which checks, after being altered, were cashed at various stores in Des Moines. Between October 1 and December 1 Younker Brothers and the Utica cashed several checks which had been stolen from the mail and which bore the forged endorsement of William C. Minard. In each instance the person who O.K.'d the check wrote thereon the means of identification used, which was a photostatic copy of the William C. Minard discharge from the armed services. In all, eleven of the checks brought to the attention of Mr. Donovan bore the endorsement of a William C. Minard.
In October, Mr. Donovan learned that a William C. Minard — appellant — lived in an apartment where two checks had been *Page 609 taken from the mail. He talked with the custodian of the apartment about Minard's habits, and also with Mr. Hagadorn, appellant's immediate superior at the USES. From him he obtained samples of his handwriting and also a list of his absences from work. Mr. Donovan testified that he contemplated talking with Minard just before Thanksgiving, but, at the request of Mr. Hagadorn, he consented to wait until after the holiday; that he was then called to Detroit, returning to Des Moines just before Christmas, and was busy with Christmas mail until the first of the year. He also stated that he had, prior to January 1946, discussed the matter at least four times with Mr. Level and given him all available information.
On December 20, 1945, a check was presented to appellee Johnston at Hotel Savery for his O.K., which was given, and the check cashed by the cashier. The check was dated December 18, 1945, drawn upon a Pella bank in the sum of $50, and signed by one Chas. Toom. The payee named therein was William C. Minard. The check was later returned, it appearing that the name of the original payee, Mary Jane Toom, had been removed and the name of William C. Minard inserted. The check was endorsed "William C. Minard" when cashed. The party presenting the check for payment wore a masonic ring and presented a photostatic copy of appellant's discharge from the service. Mr. Whalen, manager of Hotel Savery, learned from the bank that many checks had been stolen from the mail and that some, when cashed, bore the name of William C. Minard as payee or endorser. He discussed this check with two Des Moines detectives, Dawson and Fitzpatrick, and later gave them the check, as it might be useful in running down the mail thefts. Mr. Donovan was advised of the check by the detectives. It was not known by appellee Johnston that the check had been given to the federal authorities.
On January 3, 1946, Donovan went to Hotel Savery and discussed the check with both Johnston and Whalen. He informed them that a man by the name of William C. Minard lived in Des Moines and was employed at the USES. Appellee Johnston, as a witness for appellant, stated, "The morning of the 3rd, Mr. Donovan, the postal inspector, came to the hotel. Mr. Whalen and Mr. Donovan came to my office and I was asked if I could *Page 610 identify the person who wrote this — or cashed this check, and I said that I could, and I gave a description —"; he was asked to go to the USES and see if he could identify Minard as the man who cashed the check; that he went to the USES, picked an individual out of a group of men in the room as the man who cashed the check, which man was appellant; he phoned to Mr. Donovan at the hotel, told him he had identified his man and was told to talk with him about the check, which he did; he then returned to the hotel and again told Donovan that he had found the man.
Donovan went to the USES where he called appellant into Mr. Hagadorn's office and told him he was investigating some mail thefts; said that he had information which made it necessary to discuss the matter with him. At Donovan's request, appellant went to the Post Office building, where he was questioned by Donovan and by the two detectives who had been working on the case with him. Appellant was later taken to Mr. Level's office, where he was again questioned. Mr. Level then directed the filing of mail theft charges against him, and also suggested that charges might be filed in the municipal court. Appellee Johnston later appeared before the Federal grand jury, in response to a subpoena and again reiterated his identification.
The above facts are substantially undisputed, except as to what happened at the USES at the time Johnston appeared and identified appellant. Appellant states that just before Johnston talked with him someone called for Bill Minard, to which he answered that he was Minard (it is not claimed that the party who called was Johnston); that immediately thereafter Johnston told appellant he wished to talk with him; that he showed him the check and said "`you are the one'" and that he wanted his money; when told by appellant that he knew nothing about it, he said "`I am not going to pay for this, by God someone is'", and left. The record also shows that Mary Jane Toom, original payee in the check in question, resided in the same apartment building as did appellant; that on the day the check was taken from the mail the list of absences from work given to Donovan showed appellant was not absent; that appellant had at some prior date obtained some photostatic copies of his discharge, and was unable to explain how it had been obtained by other parties.
Mr. Level, as a witness, stated that he had consulted with *Page 611 Donovan many times concerning the mail thefts and Minard's connection therewith; that the decision to file the complaint was not reached on the information of any one person or any one fact; that he is the one who decides whether or not charges are to be filed, and that in view of the information given him by Donovan, together with his own questioning of Minard, it was his judgment at that time that a complaint should be filed.
Appellant's case is based upon the theory that the identification by Johnston was the proximate and efficient cause of the prosecution. It is true that this was a link in the chain of circumstances which came to the attention of the authorities, but the record shows, without dispute, that the climax had been reached prior to the identification. Mr. Level testified that prior to January 3, 1946, he had notified Donovan that "the time had come to talk with Minard and let him explain the situation. That means unless he explained it away he will be charged."
The record shows a criminal prosecution, that it had been terminated by the discharge of the defendant, and we assume, without deciding, that it shows a want of probable cause and that the prosecution was malicious.
[1, 2] It is conceded by all parties that it is essential in this type of litigation that the prosecution was procured or instigated by the defendant. As stated in 54 C.J.S., Malicious Prosecution, section 14, "defendant must have been the proximate and efficient cause of maliciously putting the law in motion in the original proceeding." Restatement of the Law, Torts, section 653, comment g, states:
"In order to charge a private person with responsibility for the initiation of proceedings by a public official, it must therefore appear that his desire to have the proceedings initiated expressed by direction, request, or pressure of any kind was the determining factor in the official's decision to commence the prosecution or that the information furnished by him upon which the official acted was known to be false."
In Bair v. Shoultz, 233 Iowa 980, 983, 7 N.W.2d 904, 905, this court said:
"In an action for malicious prosecution the question of whether the defendant was the instigator or moving cause of *Page 612 the prosecution is the same in each case. It matters not that the defendant did not sign an information and cause the arrest. It is sufficient if his voluntary participation in the prosecution starts the movement of the criminal machinery so that an arrest would probably follow." (Italics added.)
In Holden v. Merritt, 92 Iowa 707,709, 61 N.W. 390, 391, we said:
"If [defendant], on his own motion, gave information or made complaint to the officers of the law in such a manner as that, in the regular and ordinary course of events, an arrest must be made or will probably follow, this is sufficient to warrant the jury in finding him [to be] the real prosecutor." (Italics added.)
With these rules we agree, but under the facts in the instant case they are of no assistance to appellant. The record shows without contradiction, by inference or otherwise, that appellees' only connection was the giving of the check to the detectives by Mr. Whalen, manager of Hotel Savery, and the identification of appellant by appellee Johnston, which identification was undertaken and made at the request of the postal inspector, Donovan. There is not a word in the record to show that any of the appellees or Mr. Whalen asked that the authorities investigate this particular matter; that they knew that the inspector went to the USES and took appellant to the Post Office building, or that charges were filed against him by either Donovan or Level.
Appellant cites Wilson v. Thurlow, 156 Iowa 656, 658, 137 N.W. 956, 957, which is a case of mistaken identity, as is the instant case. The facts in that case are vastly different than here, and this court there said: "Before commencing a criminal prosecution, the accusing person must use the means which an ordinarily reasonable and prudent man would exercise to learn the facts." The court then states that there was evidence which tended to show that the charge was recklessly made. We do not find such a situation in the instant case. The only possible basis for claiming that appellee Johnston acted other than in good faith and with reasonable prudence is the statement, alleged by appellant to have been made by him at the USES, "I am not going to pay for this, by God someone is." While this might be *Page 613 very material upon the question of malice, which is not before us, it certainly does not go to the extent of showing that Johnston willfully and falsely identified him to Donovan, especially in the light of the other facts and circumstances appearing in the record.
We believe that the correct view to take of the instant case is found in Campbell v. Yellow Cab Co., 3 Cir., Pa., 137 F.2d 918, 921, 924, which was a mistaken-identification case. There a taxi driver in response from a summons by police identified the plaintiff as a robber, believing him to be such, but did nothing further to influence the police in the criminal prosecution subsequently taken. It was held that he was not the "instigator" of the prosecution. The court said, "his sole role was to identify the plaintiff as one of the robbers. He at no time took the initiative. He at no time, either expressly or by indirection, directed, requested or exerted any pressure upon the police to proceed with the prosecution." It also said, "the interests of society require that a citizen who performs his duty in assisting the public authorities to apprehend and prosecute criminals shall not be penalized for a mere error in so doing." See also King v. Martin, 150 Va. 122, 142 S.E. 358.
We realize that, as a general rule, the question of the defendant being the real prosecutor is one for the jury. We also recognize the fact that the question before us is not whether they did instigate the prosecution, but whether there is sufficient evidence in this record to warrant a jury in so finding. We are satisfied that under this record the trial court was correct in directing a verdict for the appellees, and that the judgment of the trial court should be affirmed.
The court being equally divided the case stands affirmed by operation of law. — Affirmed.
HALE and WENNERSTRUM, JJ., concur.
MULRONEY, J., specially concurs.
MANTZ, GARFIELD, OLIVER, and BLISS, JJ., dissent.
SMITH, J., takes no part. *Page 614