Cornner v. Hamilton
| Decision Date | 30 January 1922 |
| Docket Number | 4619. |
| Citation | 204 P. 489,62 Mont. 239 |
| Parties | CORNNER v. HAMILTON. |
| Court | Montana Supreme Court |
Appeal from District Court, Fergus County; Jack Briscoe, Judge.
Action by A. F. Cornner against R. E. Hamilton. From judgment for plaintiff and from an order denying defendant's motion for a new trial, defendant appeals. Judgment and order affirmed.
E. K Cheadle, of Lewistown, for appellant.
Belden & De Kalb and Charles J. Marshall, all of Lewistown, for respondent.
This is an action for damages for malicious prosecution. The cause was tried in Fergus county to the court with a jury, and resulted in a general verdict in favor of the plaintiff for $9,000, upon which judgment was entered. The court submitted to the jury two special interrogatories, which were returned with the general verdict, and which, with the answers made thereto by the jury, are as follows:
If you answer the foregoing interrogatory in the affirmative, you will then answer the following:
Within the time allowed the plaintiff filed a written acceptance of the order made on motion for a new trial as follows:
"Comes now the plaintiff by his attorneys and accepts the order of the court reducing judgment in the above-entitled action to $4,000, in order to avoid the granting of a new trial in said cause, and hereby excepts to the said order."
The appeal is from the judgment as modified and from the order denying defendant's motion for a new trial.
Ten specifications of error are assigned, the first eight of which relate to the admission of evidence over defendant's objection. These assignments do not conform to the rules of this court (subdivision C, par. 3, Rule 10, 167 P. x), and with propriety they might be wholly disregarded. The rules of this court were promulgated for reasons apparent, and should be carefully followed by attorneys. They should be honored by observance rather than dishonored by breach. Brockway v. Blair, 53 Mont. 531, 165 P. 455. However, from an examination of the record, these alleged errors are found to be without merit. Although appeal is made from the judgment, the judgment roll is not incorporated in the record, as required by statute. Section 7112, Rev. Codes.
In this case, neither the record on appeal nor appellant's brief reflect credit on counsel for the appellant. In the alleged brief there is not an authority cited, not even a statute. Such laxity is vexatious to this court, jeopardizes the rights of clients, and needlessly increases the work devolving upon us.
The ninth and tenth assignments of error present but a single question determinative of the case on its merits, namely: Are the damages excessive? From a careful review of the testimony, we are of opinion the damages allowed by the court in reduction of the verdict on motion for a new trial are wholly warranted. It will serve no useful purpose to review the evidence. Suffice it to say, the proof clearly establishes the commencement of a criminal prosecution by the defendant against the plaintiff by the filing of criminal complaint in the justice court of Big Spring township, Fergus county, verified by the oath of the defendant, charging the plaintiff with the crime of burglary, malice, want of probable cause, the favorable termination of the prosecution, and the resulting damage. Thus a prima facie case was established. Stephens v. Conley, 48 Mont. 352, 138 P. 189, Ann. Cas. 1915D, 958.
The plaintiff, in order to establish his case, had the burden of proving that defendant acted maliciously and without probable cause (Beadle v. Harrison, 58 Mont. 606, 194 P. 134), and this he did by proof quite sufficient to satisfy the jury. Malice may usually be inferred from want of probable cause (Grorud v. Lossl, 48 Mont. 274, 136 P. 1069; Beadle v. Harrison, supra; Martin v. Corscadden, 34 Mont. 308, 86 P. 33), but want of probable cause cannot be inferred from malice alone. 26 Cyc. 22-25. However, in this case, there was independent proof of malice, in addition to that of want of probable cause. As the name implies, malice is the root of an action of malicious prosecution, yet malice alone is not enough; want of probable cause for the institution of the proceedings must be shown, so that it may be said that want of probable cause is the very gist of the action. 18 R. C. L. 33-34; 26 Cyc. 20. Probable cause is defined to mean reasonable ground for suspicion, supported by circumstances sufficiently strong in themselves to warrant a reasonably prudent and cautious man in the belief that the accused is guilty of the offense with which he is charged. 26 Cyc. 24; 18 R. C. L. 335.
The defendant pleaded in defense reliance upon the advice of the county attorney, as to which he submitted evidence, and the court correctly instructed the jury with respect thereto as follows:
"You are instructed that if before signing the complaint in the court of Justice Brassey the defendant consulted Frank A. Wright, attorney at law, and at that time county attorney of Fergus county, and fully and fairly stated to him all the facts that he, the defendant, had in his possession in regard to the alleged offense of burglary by the plaintiff in this action, the said Frank A. Wright thereupon advised the defendant as an...
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