Carnegie v. Gage Furniture, Inc.

• Decision Date: 17 July 1975
• Docket Number: No. 47587,47587
• Citation: Carnegie v. Gage Furniture, Inc., 538 P.2d 659, 217 Kan. 564 (Kan. 1975)
• Parties: Deanna CARNEGIE, Appellee, v. GAGE FURNITURE, INC., d/b/a Tom, Dick & Harry, Appellant.
• Court: Kansas Supreme Court

Page 659

538 P.2d 659

217 Kan. 564

Deanna CARNEGIE, Appellee, v.GAGE FURNITURE, INC., d/b/a Tom, Dick & Harry, Appellant.

No. 47587.

Supreme Court of Kansas.

July 17, 1975.

Syllabus by the Court

1.Rules relating to the elements of malicious prosecution, the existence of 'probable cause' and the defense of 'advice of counsel' are stated and applied.

2.A verdict cannot be upset if there is any evidence in the record to support it, where such issue is presented without complicating factors, but such rule yields to the impact of admissions made by a party in his testimony while a witness in the case, and such admissions are binding and conclusive upon him if uncontradicted or unexplained, whether such admissions are elicited on direct examination or on cross-examination of the party.Admissions derived from a party's own conduct may likewise be so considered.

3.In an action for malicious prosecution malice is not in itself the same thing as want of probable cause, although a want of probable cause may be evidence of malice.

4.In an action for malicious prosecution wherein plaintiff in a jury trial recovered a judgment against defendant for instituting a replevin suit against her, the record is examined and it is held: The trial court erred in submitting the issue of want of probable cause to the jury because as a matter of law, by reason of plaintiff's admissions and conduct under the circumstances, defendant had probable cause to institute the replevin action, and defendant's motion for directed verdict should have been sustained; further, costs of reproducing the record on appeal are apportioned equally between the parties by reason of breach of rules relating to such preparation.

James L. Grimes, Jr., and Michael J. Grady, of Cosgrove, Webb & Oman, Topeka, argued the cause and were on the brief for appellant.

Fred W. Phelps, Topeka, argued the cause and was on the brief for appellee.

HARMAN, Commissioner:

This is an action for damages for malicious prosecution of a civil suit.Trial to a jury resulted in a judgment for plaintiff from which defendant has appealed.

PlaintiffDeanna Carnegie alleged in her petition that on July 29, 1970, defendantGage Furniture, Inc., maliciously instituted a replevin action against her for recovery of a color television set at a time when she was not in default under an installment contract to purchase the set and because of the groundless suit she incurred legal expense and suffered a neurosis which resulted in partial physical paralysis and expenses for medical and psychiatric care.She sought $100,000 compensatory and $100,000 punitive damages.

Defendant Gage Furniture in its answer denied the replevin suit was groundless or maliciously instituted and alleged that any expenses and damages incurred by plaintiff did not result from its acts.

Upon issues thus joined a jury rendered a general verdict for plaintiff for $45,000 compensatory damages, upon which judgment was entered.Posttrial motions were overruled and this appeal ensued.

The testimony adduced at trial revealed the following: On November 12, 1969, plaintiff-appellee entered into an installment contract to rent and/or purchase a color television set from Martin Amusement Company for the sum of $287.00.Sales tax of $8.61 added to the purchase price made a total contract figure of $295.61.Monthly payments by appellee of $25.00 were to be applied 40% to rental of the TV and 60% to its purchase.Martin was to repair and service the set throughout the term of the contract.The contract was written in summary fashion on Martin's printed duplicate sales order forms and was signed by appellee.Appellee testified that although the written contract did not reflect it, her monthly payments were to be due around the 18th of the month and that all payments after the first six were to be applied 100% toward the purchase of the set.

Appellee made $25.00 payments in November and December, 1969, and in January and February, 1970.She made no payment in March but contacted Martin Amusement and assured it she would make her April payment.Appellee made a further $25.00 payment to Martin in April, 1970.Some time in March or early April, 1970, Martin assigned its rental-purchase contract with appellee to appellant Gage Furniture.On April 16, 1970, appellant sent a card to appellee that her April rental payment was overdue.The notice also contained a statement that appellee would be subject to a 50cents per day late charge.Upon receipt of this notice appellee telephoned appellant's offices and advised she had sent her April payment to Martin.She expressed discomposure at the reference to the 50cents late charge.Following this conversation appellant contacted Martin and learned it had received a payment, which payment was then forwarded and received by appellant on April 17, 1970.

Subsequently appellee had a conversation with appellant's vice-president, Carl L. Lewis, about entering into a new contract concerning the TV set-she wanted her obligation with appellant and her balance in writing as she was concerned that her arrangement remain the same.Appellee was told to furnish the contract.Appellee then contacted a law student, gave him her records and all the information concerning the transaction and he in turn typed the following instrument:

'CONTRACT OF SALE

'Vendor, Tom Dick and Harry's hereby agrees to sell, and Purchaser, Mrs. Deanna Carnegie, agrees to purchase one Heath Kit Color T.V. for the balance remaining on a contract between Martin Amusement and Deanna Carnegie, which contract has been assigned to Tom Dick and Harry's, said balance is hereto agreed to be $205.61.Payments are to be in the amount of $25 per month to be paid on or before the 18th of every month.The parties hereby agree that the remaining purchase price of $205.61 includes any computation of interest and that no additional interest whatsoever will be added to this sum.

'In the even of a default in making payments by Mrs. Carnegie, she will be allowed an additional 30 days to come forward with payment and until this additional period elapses, will not be deemed to be in breach of this contract.

'Vendor shall repair said T.V. in agreement with past rental contract as agreed previously, to the above contract, after which Mrs. Carnegie will be responsible for repairs.'

Appellee took the contract to appellant's office where on May 5, 1970, it was signed by her and appellant's vice-president.The instrument was not dated.On the same day appellee made a $25.00 payment to appellant which appellant credited as a rental-purchase payment under the old Martin contract (it is the application of this payment which really forms the crux of this lawsuit).Appellee testified she thought she was making this May 5th payment as the first one due under the new purchase contract.Appellant's testimony was that this payment was to apply on the balance due on the old Martin contract, being the sixth and reducing the amount due on it to the sum of $205.61 ($295.61 less six purchase-price payments of $15.00 or $90.00).On May 5, 1970, appellant gave appellee a receipt for this $25.00 payment which read 'Rental on TV' and appellee accepted it without demurral.

On June 2, 1970, appellee returned to appellant's store to make another payment.A dispute arose between her and appellant's vice-president because he had written the word 'rental' on her proposed receipt.Appellee insisted she would not accept such a receipt because she was purchasing, not renting the TV.There was some dispute as to exactly what occurred but in any event angry words were exchanged and appellee picked up her money and left without making a payment.Appellee went that same day to the buyer protection division of the attorney general's office with her grievance, which agency wrote two letters and made a telephone call to appellant concerning the affair.

Appellee made no further payments on the contract until July 9, 1970, at which time she paid $25.00.Thereafter appellee made a $25.00 payment each month until the balance owing was fully paid.

Meanwhile, on July 29, 1970, believing that appellee was two payments in arrears under her contract appellant, upon advice of its then legal counsel, Mr. John Bell, filed a replevin action in magistrate court.Appellee became very disturbed when deputy sheriffs attempted to execute the replevin order, she retained an attorney and posted a redelivery bond so she might retain possession of the TV set.As a result of her distress over the attempted repossession she suffered physical and mental disability, diagnosed as anxiety neurosis with conversion symptoms, and underwent extensive medical and psychiatric treatment.

Trial to the magistrate judge was held in the replevin action on December 15, 1970.This resulted in a judgment for appellee on the judge's conclusion that the suit had been commenced prior to default by reason of the thirty day grace period.Appellant then filed a motion for new trial which, after hearing, was granted.The second trial in magistrate court was heard by a different judge on April 27, 1971.This judge also held for appellee on his conclusion appellee was not in default by reason of her June 2d tender of payment.At the time of the second trial appellee had paid appellant in full in continued monthly payments the amount asserted by it to be due and owing under the May 5th contract.After the conclusion of the first trial appellant was threatened with a malicious prosecution suit on appellee's behalf and it tried the replevin case a second time in an effort to establish that it had probable cause to commence the action.One magistrate court judge did testify that in his opinion appellant had probable cause to institute the replevin suit.

On appeal appellant's principal point is that it had probable cause as a matter of law to bring the replevin action and the trial court erred in submitting the case to...