dissenting.
Because I believe plaintiff made a sufficient showing to survive defendant Williams’ motion for summary judgment, I vote to reverse the decision of the Court of Appeals.
The gravamen of plaintiffs action as alleged against these defendants is that they surreptitiously planted illegal drugs in his truck and on 3 March 1975 instituted criminal proceedings against him for unlawful possession of the drugs. The criminal proceedings against him were dismissed. If at trial plaintiff can prove these allegations, he will have made out a case of malicious prosecution.
On Williams’ motion for summary judgment Williams offered his own affidavit to this effect: On 3 March 1975 he overheard three unknown persons discussing drugs. One of them remarked that drugs were obtainable from “Middleton, a school teacher.” Recalling that he had earlier discussed local drug problems with Myers, a police officer, and the name “Middleton” had been mentioned, he called Myers and told him that he had “some information about the man we talked about earlier” and that “if this was the same man that I had heard the young men discuss, I felt reasonably certain one or more of the men would be contacting him that same night.” Williams said he further told Myers that while he had no “proof” as to where the drugs might be, Middleton’s truck would be “as good a place to start as any, since the young men I overheard talking mentioned he made deliveries.”
Plaintiff then offered the testimony of James Myers, the other defendant. Myers said that at the time of the incidents in question he was a Lexington police officer. Two weeks before 3 March 1975 he had a conversation with Williams concerning “a person known as Herman Clayton Middleton.” Williams first mentioned Middleton and asked Myers if Myers ever got “any information on Mr. Middleton.” Myers replied that he “had had some information on him before, not a whole lot but we had some.” Later, Myers said, he had a second conversation with Williams. *51Apparently this was the conversation that occurred on 3 March 1975 and which ultimately led to Middleton’s arrest. In this conversation, held at Williams’ insistence, Williams told Myers that Middleton had drugs in his truck. Myers asked Williams how he knew the drugs were there and, according to Myers, Williams said:
“ ‘If I say they will be there, they will be there’, or something to that wording. That’s all I remember Mr. Williams telling me on that occasion. Mr. Williams made no statement to me that he had overheard any previous conversation from other persons concerning Mr. Middleton, and he did not relate to me how he knew the drugs would be there. He just responded, ‘If I tell you they will be there, they will be there.’ He did not tell me how he learned that information.”
Far from tending to show that Williams was without malice and acting in good faith, this evidence, taken together, casts doubt on Williams’ credibility and points at least a suspicious finger at Williams in the context of plaintiff’s allegations. According to Williams, (1) Middleton “was mentioned” in his first conversation with Myers; (2) he next heard Middleton’s name when he overheard the conversation of three unknown persons in a restaurant; (3) while no truck was mentioned in this conversation he told Myers that Middleton’s truck was “as good a place to start as any.” Myers testified, however, that their first conversation centered on Middleton whose name was suggested by Williams. In their second conversation, instigated by Williams, Williams told him the drugs would be in Middleton’s truck. When asked how he knew this, Williams failed to mention the overheard conversation in the restaurant but said something to the effect that, “If I say they will be there, they will be there.”
I, of course, do not know where the truth lies in this dispute. Neither do I disagree with the legal principles used by the majority to resolve this case. I simply take a different view of the evidentiary showing and the inferences which might be drawn therefrom. This showing to me demonstrates the existence rather than the non-existence of a material factual issue, ie., whether Williams did, indeed, plant the drugs in plaintiff’s truck as plain*52tiff alleges. This issue should be resolved by a jury — not by the court on a motion for summary judgment.
I also join in the dissent filed by Justice HUSKINS.
Justice COPELAND joins in this dissent.