Bokum v. Elkins

• Decision Date: 31 August 1960
• Docket Number: No. 6678,6678
• Citation: 355 P.2d 137,1960 NMSC 91,67 N.M. 324
• Parties: Richard D. BOKUM, II, Plaintiff-Appellee, v. Lawrence ELKINS, D. J. Elkins, Lynn Seward and C. O. Butler, Defendants-Appellants.
• Court: New Mexico Supreme Court

Page 137

355 P.2d 137

67 N.M. 324

Richard D. BOKUM, II, Plaintiff-Appellee, v. Lawrence ELKINS, D. J. Elkins, Lynn Seward and C. O. Butler,

Defendants-Appellants.

No. 6678.

Supreme Court of New Mexico.

Aug. 31, 1960.

John E. Perry, Gallup, for appellants.

Lyle E. Teutsch, Jr., Thomas A. Donnelly, Santa Fe, for appellee.

CHAVEZ, Justice.

This is an appeal by defendants-appellants from a judgment rendered against them pursuant to a jury verdict.

The facts briefly stated are as follows. Appellants, Lawrence Elkins and D. J. Elkins, originally filed injunction proceedings against appellees, Bokum, Jack Garrett and William Coffey, in a separate action in McKinley County, New Mexico. A temporary restraining order was entered on November 28, 1955, enjoining Bokum from entering the Elkins' land which surrounds Section 16, Township 14 North, Range 12 West, N.M.P.M. Bokum filed a response, alleging the existence of a long established road through Section 17 to Section 16, and that a right-of-way across said Section 17 had been reserved in a deed from Elkins' predecessors in title, and that such reserved right had been assigned to Bokum. Bokum claimed damages due to Elkins' interference with his use of the right-of-way and for the alleged unlawful issuance of the injunction order based upon Elkins' unjustified complaint. The hearing on the injunction suit was set for December 20, 1955, and after a hearing an order was entered on January 9, 1956, continuing the restraining order until final hearing of said cause.

The trial court rendered its decisions, holding that said Section 16 is owned by the State of New Mexico, that the State had leased said section to Sabre Uranium Corporation, and that the State of New Mexico and its lessees have an implied right-of-way over the surface of Elkins' land for the purpose of going upon, exploring and removing minerals from said Section 16. The trial court dissolved the injunction and ordered that Bokum's claim for damages be dismissed without prejudice, with leave to file a separate suit for any damages on the injunction suit or otherwise.

Thereafter, appellee, Bokum, filed this suit. Appellants, Elkins, are the owners of the land surrounding Section 16 above described, and appellants, Seward and Butler, were the sureties on the injunction bond. Appellee's first cause of action was for malicious prosecution and prayed damages in the sum of $2,025.80. Said count also alleged that Seward and Butler was the sureties on the injunction bond. It were stipulated by the parties, as to the injunction bond, that appellee should have judgment against appellants, Seward and Butler, without offering any evidence, in the sum of $500 and costs of suit. In his second count, appellee claimed damages alleging that he had an option agreement with Sabre Uranium Corporation dated August 22, 1955, under the terms of which he had the right to acquire a one-half working interest in said Section 16 by performing a minimum of 15,000 feet of rotary drilling thereon, and to have the same performed within 120 days from August 22, 1955. Appellee further alleged that due to appellants Elkins' action in wrongfully obtaining the injunction order, and in interfering with his attempt to explore and develop minerals on said Section 16, that he lost said option. Appellee prayed damages for the loss of said option and for punitive damages. The jury allowed no punitive damages. but did allow appellee compensatory damages in the sum of $8,360, together with costs of $33.50.

Appellee commenced drilling on Section 16 about November 22, 1955, and appellants, Elkins, obtained the restraining order on November 28, 1955. The hearing on the restraining order was set for December 20, 1955, and the expiration date on appellee's option was December 22, 1955.

Appellants assign fourteen assignments of error, seven of which are summarized and argued under one general assignment of error as follows:

'That there is no competent evidence that appellee suffered any legal damages for the loss of the option.'

Appellants cite some of our decisions that a finding, or verdict of the jury, may not rest on mere speculation and conjecture. Petrakis v. Krasnow, 54 N.M. 39, 213 P.2d 220, and our holdings as to loss of profits, Price v. Van Lint, 46 N.M. 58, 120 P.2d 611. The rule is unquestioned that the evidence must show damages to a reasonable certainty. Connecticut Railway & Lighting Co. v. Palmer, 305 U.S. 493, 59 S.Ct. 316, 39 L.Ed. 309.

With the above authorities we have no quarrel. Both parties argue at length in their briefs as to appellants' claim that there was no evidence that appellee suffered any legal damages for the loss of the option. We have reviewed the record and find that appellee showed with reasonable certainty that he had suffered damages. Thus, it was for the jury to allow such damages as they felt directly and naturally resulted from the injury. Once it is found that a legal right to damages exists, computation of the amount with absolute certainty is not required. Hubbard v. Goode, 65 N.M. 263, 335 P.2d 1063; Frank Bond & Son, Inc. v. Reserve Minerals Corp., 65 N.M. 257, 335 P.2d 858; Robert E. McKee General Contractor, Inc. v. Insurance Co., 10 Cir., 269 F.2d 195.

Appellants' point II is that there is no competent evidence in the record establishing a cause of action for malicious prosecution. This general assignment of error and arguments cover five additional assignments of error. Under this point, appellants argue that the trial court committed error in refusing to grant appellants' requested instruction No. 2, as follows:

'Probable cause for the commencement of the lawsuit consists of facts and circumstances warranting a reasonable man in the honest belief that his action is just and legal. Want of probable cause is not to be inferred from the fact that the Defendants in this cause lost their prior injunction action nor is it to be inferred from the evidence of malice if you should find the prior action was commenced maliciously.'

The trial court, in its instruction to the jury, set out specifically the elements of 'malicious prosecution' and among the elements set out are: '(d) the absence of probable cause for such proceedings, (e) the presence of malice,' and then gave the following instructions:

'The Court further instructs the Jury that one who initiates a court proceeding against another has probable cause for so doing if he reasonably believes in the existence of the facts upon which his claim is based and reasonably believes that under such facts the claim he asserts may be valid in law, or so believes in reliance upon the advice of counsel given to him after such advice has been sought in good faith and after a full disclosure to such counsel of the pertinent and material facts within the knowledge and information of the person or persons who instituted such original action claimed to have been a malicious prosecution.'

'The Court instructs the Jury that where the Defendant, or Defendants, act in good faith, on the advice of counsel properly secured, in instituting or continuing the original litigation, such Defendants is relieved from liability no matter how mistaken the advice of counsel may have been.'

'* * * or if you find and believe from a preponderance of the evidence that the Defendants, or either of them commenced or continued an original civil judicial proceeding in the District Court of McKinley County against Bokum the Plaintiff in this case, that said original civil proceeding was ultimately terminated in favor of Bokum, that the Defendants were without probable cause to maintain or to continue said civil action and that said action was instituted or continued in malice on the part of the Defendants, or of either of them. * * * In this connection you are further instructed that if you find and believe from a preponderance of the evidence that in instituting the injunction action, Cause #9138 in the District Court of McKinley County, the Defendants sought the advice of counsel, that is, of an Attorney at Law, in good faith and that the Defendants, or either of them, made a full disclosure of the relevant, pertinent and material facts within the knowledge and information of the Defendants, to such attorney and if the Defendants acted in good faith upon the advice of such attorney under the circumstances above set out, than you will be required to find and conclude from the evidence that the Defendants in this case had probable cause for the beginning and maintenance of the injunction suit in which they were Plaintiffs and Bokum was a Defendant, and that the filing and continuance of such litigation did not amount to and was not a malicious prosecution of a cause of action; * * *.'

The extensive instructions given by the trial court were sufficient and made it plain to the jury that malice and want of probable cause, separately, were elements of malicious prosecution, and that each had to be proven by a preponderance of the evidence. There is authority that want of probable cause cannot be inferred from malice; however, it is well settled that malice may be inferred from want of probable cause. Delgado v. Rivera, 40 N.M. 217, 57 P.2d 1141; Hughes v. Van Bruggen, 44 N.M. 534, 105 P.2d 494; Marchbanks v. Young, 47 N.M. 213, 139 P.2d 594; 54 C.J.S. Malicious Prosecution Sec. 43, pp. 1006-1007. It is also true that what constitutes probable cause is a question of law for the trial court to determine, Hughes v. Van Bruggen, supra, but appellants did not object to the submission of this question to the jury. Brown v. Village of Deming, 56 N.M. 302, 243 P.2d 609.

Appellants' requested instruction No. 3, as to commencement of a lawsuit on advice of counsel, was given to the jury in the trial court's general charge as hereinbefore set out. Requested instructions covered by the trial court's general charge are properly refused. Davis v....