Consumers Filling Station Co. v. Durante, 2814

Decision Date16 December 1958
Docket NumberNo. 2814,2814
Citation333 P.2d 691,79 Wyo. 237
PartiesCONSUMERS FILLING STATION COMPANY, a Corporation, Plaintiff and Respondent, v. Guido DURANTE, Defendant and Appellant.
CourtWyoming Supreme Court

Lathrop & Lathrop, James A. Tilker and Byron Hirst, Cheyenne, for appellant.

Greenwood, Ferrall & Bloomfield, James A. Greenwood, Cheyenne, for respondent.

Before BLUME, C. J., HARNSBERGER, J., and SPANGLER, D. J.

District Judge SPANGLER delivered the opinion of the court.

Throughout this opinion the plaintiff and respondent will be referred to as 'Consumers', and the defendant and appellant will be referred to as 'Durante'.

This case is before the court upon an appeal by Durante, from the judgment of the court in favor of Consumers and against Durante, in the sum of $5,848 with interest thereon at 7% per annum from the date of the judgment until paid, together with Consumers' costs incurred in the action in the sum of $95.70. The action was commenced by Consumers against Durante to recover damages for alleged malicious prosecution in the bringing of three actions of forcible entry and detainer and one action of ejectment. In 1945 Durante as lessor and Consumers as lessee entered into a written lease agreement for the leasing of certain business premises in Cheyenne, Wyoming, for a monthly rental of $200, payable in advance on the first day of each month. The lease provided among other things that:

'Permission is hereby given to the Lessee to remodel or make alterations of premises and building, either inside or outside, during the term hereof at its own expense, but shall first obtain the written approval of the Lessor to any material changes.

* * *

* * *

'In the event of failure of the Lessee to pay the rental herein provided for, or to keep and observe the other conditions of this Lease or any of them, Lessor shall be entitled to his option to declare this Lease terminated and to recover possession of the leased premises with or without legal process.'

Consumers paid the rental of $200 a month until 1948, when pursuant to the request of Durante they paid $250 per month during the year 1948. In December of 1948, Durante requested an additional $50 per month, but Consumers decided to 'go back to the original lease of $200 per month rent'. On February 5, 1949, Durante consulted his attorney, Byron Hirst of Cheyenne, Wyoming, with reference to Consumers' failure to pay the February rent on time, that is, on February 1st. Durante showed Hirst the lease and told him that this was not the first time that Consumers had been late in paying the rent. Hirst advised Durante that he had a cause of action for nonpayment of the rent, and Durante told Hirst to proceed and do what he thought should be done. On February 5, 1949, Hirst prepared and served on Consumers a notice to quit; and on the same day Consumers delivered to Durante's bank a check for the $200 rent payment for the month of February, which check was accepted by the bank and deposited to the credit of Durante's account, as had been the custom in the past. On February 8, 1949, the bank returned to Consumers the $200 rent payment, pursuant to instructions from Hirst. Later, in March 1949, Hirst filed an action of forcible entry and detainer in the court of Justice of the Peace Briggs. Upon a hearing, judgment was entered for Durante, and Consumers appealed to the district court. The district court reversed the judgment in September 1950 and no appeal was taken therefrom.

In February of 1950, a notice of intention to file lien, on the leased premises, was served on Durante by one who had done work upon the premises at the request of Consumers, and Durante delivered the notice of Hirst. In April of 1950, Durante was advised by his attorney to make an examination of the premises, and discussion was had between Durante and his attorney as to the lien notice and relative to certain changes that had been made in the premises. On May 1, 1950, after a notice to quit had been served, an action was commenced by Durante against Consumers in the court of Justice of the Peace Briggs for forcible entry and detainer, on the grounds of changes in the building contrary to the provisions of the lease. The matter was heard before Justice of the Peace Briggs and judgment was entered in favor of Durante on May 18, 1950. Consumers appealed to the district court, and in 1952 the district court reversed said judgment and entered judgment in favor of Consumers.

In May of 1950, Consumers brought an action in the district court against Justice of the Peace Briggs and Durante, requesting that they be prohibited from further proceeding under the May 1950 action. In February 1951, the district court denied Consumers' petition for a writ of prohibition.

On September 7, 1951, Durante again contacted Hirst regarding the September rent, which had not at that time been paid. Hirst advised Durante that another notice to quit should be served, as a prerequisite to bringing another forcible entry and detainer action, and that an action of ejectment should also be commenced in the district court. Hirst also advised Durante that changes made by Consumers in the premises were substantial and material changes. The ejectment action was commenced in the district court on September 7, 1951, on the grounds of material alteration and nonpayment of rent. The forcible entry and detainer action was commenced on September 13, 1951, before Justice of the Peace Briggs, and the case was then assigned to Justice of the Peace Lyons. On October 9, 1951, Justice of the Peace Lyons entered a judgment in favor of Durante and an appeal was taken therefrom by Consumers to the district court. In 1952, the district court reversed the judgment and entered judgment in favor of Consumers.

In March of 1952, the appeal of the second and third forcible entry and detainer actions and the ejectment action, being consolidated for trial, was heard in the district court, and on July 21, 1952, a judgment was entered reversing said justice court judgments, and in favor of Consumers on the ejectment action. Durante appealed from this judgment. This supreme court entered its mandate of affirmance on June 22, 1953, in the case of Durante v. Consumers Filling Station Co. of Cheyenne, 71 Wyo. 271, 257 P.2d 347.

On May 5, 1954, Consumers commenced this action in the district court, alleging malicious prosecution by reason of said actions, and claiming damages resulting therefrom, and issue was joined thereon. Upon trial of the case before a jury, a verdict was returned and judgment entered thereon as aforesaid.

This court will not attempt to discuss or decide all of the questions that have been raised upon appeal, or to discuss in detail the evidence as adduced at the trial. It is only necessary to pass upon one question, namely that of 'probable cause' in arriving at a decision in this case. The evidence is so long, and the record is so voluminous, that it would be impossible to include any substantial part in this opinion, as it took some nine days to try this case in district court, and the record consists of hundreds of pages contained in four volumes.

It is the opinion of the court that the vital point in controversy, as a matter of law, is: Did Durante initiate the forcible entry and detainer actions in the justice court and the ejectment action in district court without probable cause?

In general, the same elements must be present to authorize the maintenance of an action for maliciously instituting a civil suit as for maliciously prosecuting a criminal proceeding, and in either case the following elements must be shown:

(1) The institution or continuation of original judicial proceedings, either criminal or civil;

(2) Such proceedings having been by or at the instance of the defendant (such as Durante in this case);

(3) The termination of such proceedings in favor of the plaintiff (such as Consumers in this case);

(4) Malice in instituting the proceedings;

(5) Want of probable cause; and

(6) The suffering of injury or damage as a result of the action complained of.

If any one of these elements is lacking, the result is fatal to the action. 34 Am.Jur. Malicious Prosecution § 6, and 54 C.J.S. Malicious Prosecution § 4.

In 34 Am.Jur. Malicious Prosecution § 5, the judicial attitude of the courts toward this type of action is stated as follows:

'It is frequently said that the action for malicious prosecution is not favored in law. Hence, as has been frequently pointed out, the action has been hedged about by limitations more stringent than those in the case of almost any other act causing damage to another, and the courts have allowed recovery only when the requirements limiting it have been fully complied with. * * *'

The reason for this attitude as stated in many cases, which can be found in the footnotes contained in the citations given above, is that public policy requires that all persons shall freely resort to the courts for redress of wrongs, and the law protects them when they act in good faith and upon reasonable grounds in commencing either a civil or criminal prosecution.

In some recent American decisions recovery has even been denied in malicious prosecution actions based upon civil suits where the plaintiffs in the malicious prosecution action were unable to show special injuries or damages, even though the civil action had been instituted with malice and without probable cause.

In the case of Peckham v. Union Finance Co., 60 App.D.C. 104, 48 F.2d 1016, 1017, the court in denying recovery said:

'In our opinion the greater weight of authority in this country and the better reasoning support the view that no action will lie for the recovery of damages sustained by the prosecution of a civil action with malice, and without probable cause, when there has been no arrest of the person or seizure of the property of the defendant, and no special injury sustained, which would not...

To continue reading

Request your trial
10 cases
  • Sanders v. Daniel Intern. Corp.
    • United States
    • Missouri Supreme Court
    • 18 Diciembre 1984
    ...Cross, 564 S.W.2d 121 (Tex.Civ.App.1978); Creelman v. Svenning, 1 Wash.App. 402, 461 P.2d 557 (1969); Consumers Filling Station Co. v. Durante, 79 Wyo. 237, 333 P.2d 691, 699-700 (1958); Meyer v. Ewald, 66 Wis.2d 168, 224 N.W.2d 419, 422 (1974). See also Ga.Code § 51-7-2 Malice is distingui......
  • Blake v. Rupe
    • United States
    • Wyoming Supreme Court
    • 14 Septiembre 1982
    ...issued upon a complaint. Rupe was not arrested and spent no time in custody or in jail. Rupe also cites Consumers Filling Station Company v. Durante, 79 Wyo. 237, 333 P.2d 691 (1958) to support his position that Dekmar participated in this prosecution by filing a complaint against Rupe with......
  • Turner v. Thomas
    • United States
    • North Carolina Supreme Court
    • 21 Diciembre 2016
    ...institution or continuation of original judicial proceedings, either criminal or civil’ " (quoting Consumers Filling Station Co. v. Durante , 79 Wyo. 237, 248, 333 P.2d 691, 694 (1958) )). Admittedly, a number of states have defined the tort of malicious prosecution without making reference......
  • Toltec Watershed Imp. Dist. v. Johnston
    • United States
    • Wyoming Supreme Court
    • 9 Abril 1986
    ...the motive might be in instituting prosecution for purposes of malicious prosecution. In the case of Consumers Filling Station Company v. Durante, 79 Wyo. 237, 333 P.2d 691, 694 (1958), this court set forth the following elements necessary to sustain a cause of action for malicious "(1) The......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT