Clapp v. Lahood
| Decision Date | 23 March 1927 |
| Docket Number | 6044. |
| Citation | 254 P. 866,78 Mont. 551 |
| Parties | CLAPP v. LAHOOD. |
| Court | Montana Supreme Court |
Appeal from District Court, Madison County; Henry G. Rodgers, Judge.
Action for malicious prosecution by John C. Clapp against Shadan Lahood. From a judgment for plaintiff, defendant appeals. Affirmed.
George R. Allen, of Virginia City, John F. McGough, of Whitehall and N. A. Rotering, of Butte, for appellant.
Ike E O. Pace, of Whitehall, for respondent.
This is an action in damages for alleged malicious prosecution. Under written lease, plaintiff and his partner, one Armitage, were tenant occupants of a garage building, the property of defendant. They had not long occupied the building. There was much wrangling between landlord and tenants. Evidently much ill will, both ways, was engendered. Defendant served the tenants with notice to vacate. He sued them for money owing him, and attached their personal property. He put on new locks and locked them out of the premises. The tenants removed one of the locks and entered. Defendant filed in justice court a criminal complaint for misdemeanor, charging them with malicious injury to personal property, viz breaking a lock and door. They were arrested, confined in jail a couple of hours or more, released on bail, tried, and acquitted.
Plaintiff, in instituting this action, filed a complaint, in ordinary form, alleging the arrest, incarceration, and acquittal, malice, lack of probable cause, and damage. Defendant's answer is a general denial. The case was tried with a jury. There was verdict in the sum of $1,000 for plaintiff and judgment accordingly. A motion of defendant's for a new trial was overruled. Defendant appealed from the judgment and assigns a number of specifications of error. We shall consider them in what appears appropriate order.
After defendant had had the tenants arrested and incarcerated in jail, and while, on that account, they were away from their place of business, and while their personal property therein was under attachment, obtained by defendant in his civil action, and while such property was in custody of a keeper, it appears defendant entered the building and removed therefrom a lot of tools, alleged to be the property of the tenants. At least, there was testimony to that effect. This is said to have been done in the nighttime; the night of the day of the arrest of the tenants. In the trial of the instant case, the keeper was a witness for plaintiff. On direct examination, he was asked what defendant did that night, with respect to the contents of the garage. Counsel for defendant objected to the question, as irrelevant, incompetent, and immaterial. The objection was overruled, and the witness testified to the conduct of defendant, as above detailed. The ruling is assigned as error.
Being immediately after the arrest and connected with the dispute out of which grew the arrest, we hold the ruling was not error. The evidence adduced was proper, as going to shed light upon the question of malice, the state of feeling of defendant for plaintiff, if there was any purpose to vex, annoy, or injure plaintiff. The motives which influence the prosecution may be inferred from subsequent conduct of defendant. 8 Enc. Ev. 406; 38 C.J. 492; Marks v. Hastings, 101 Ala. 165, 13 So. 297; Thurston v. Wright, 77 Mich. 96, 43 N.W. 860; Brown v. Riggs, 123 Mich. 208, 81 N.W. 1079.
The entry of judgment is assigned as error. It is contended the judgment is not supported by the evidence. We cannot agree with that contention. We hold there was sufficient evidence of lack of probable cause to go to the jury, for its decision.
"To prove want of probable cause is to prove a negative, and the authorities hold generally that slight evidence is sufficient for that purpose." Puutio v. Roman, 76 Mont. 105, 245 P. 523.
Plaintiff and his partner, by virtue of a lease, were legally in possession of the building occupied by them and owned by defendant. The latter served on them a written notice (provided for, under certain circumstances, in the lease) that, at the end of five days thereafter, their lease would terminate, because of forfeiture, and demand that, at the end of the five days, they surrender possession of the premises. Even though the notice were efficacious and potent for its purpose (which we are not deciding), in the temporary absence of the tenants, defendant put two new locks on doors of the building and locked out the tenants, before the expiration of the five days. He testified that, by phone, he consulted the county attorney about it and acted on his advice.
It appears that Sunday morning, June 1, 1924, plaintiff went away to spend the day with relatives and returned Monday morning. Armitage, his partner, it appears, stayed in charge of the business that day. About noon, Sunday, he carried, by machine, some passengers out in the country, and was gone about two hours. During his absence, defendant put on a door of the building one of the new locks and kept the key. When Armitage returned he found himself locked out. Defendant observed him there. Armitage remained out of his place of business the remainder of the day. Early Monday morning, while Armitage was thereabout but not in sight, defendant put another new lock on another door of the building and kept the key, and then departed for a neighboring town, there to give attention to his civil suit and attachment.
Soon thereafter plaintiff returned from his Sunday visit, and Armitage informed him of being locked out. They then removed one of the new locks, without injury to the door or building, and entered. That, too, was within the five days specified in the notice to vacate. Defendant learned of the act of the tenants, and their arrest followed.
Under these circumstances, it is hard to conceive how defendant, as a reasonable man, could claim probable cause to believe plaintiff and his partner guilty of a criminal offense. Defendant may have imagined it, but the law requires more than imagination or surmise. He must have known that, at least until the expiration of the five days' time he had allowed them (as provided in the lease) in his notice to vacate, the tenants were entitled, without question, to the possession of the leased premises. They had therein belongings, and were conducting there a business. The whole matter was a controversy about rights of property, fit for a civil action. Some portions of defendant's testimony may indicate he had ground for probable cause to believe plaintiff guilty of a criminal act or possibly that inference might be drawn therefrom. Different inferences might be drawn by different people. It was for the jury to say what inferences should be drawn.
Although there is no conflict of evidence about the locking out of the tenants and their re-entrance, by removal of a lock, before the end of the five days given in which to vacate, there is a substantial conflict of evidence on some of the material issues of the case, and it was for the jury to decide the issues of fact. It decided them in favor of plaintiff, and its decision thereon may not be disturbed. Martin v Corscadden, 34 Mont. 308, 86 P. 33. The jury found there was lack of probable cause, and from lack of probable cause malice may be inferred. Halladay v. State Bank of Fairfield, 66...
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