Fauver v. Wilkoske

• Decision Date: 28 October 1949
• Docket Number: 8854.
• Parties: FAUVER v. WILKOSKE et al.
• Court: Montana Supreme Court

211 P.2d 420

123 Mont. 228

FAUVER v. WILKOSKE et al.

No. 8854.

Supreme Court of Montana

October 28, 1949

Rehearing Denied Nov. 30, 1949.

J Wellington Fauver sued R. A. Wilkoske and others for malicious prosecution.

The Sixteenth Judicial District Court, Carter County, W. R Flachsenhar, J., granted defendants' motion for judgment notwithstanding the verdict, and plaintiff appealed.

The Supreme Court, Adair, C.J., reversed the judgment and held that defendants could not move for judgment notwithstanding the verdict and that the verdict for plaintiff implied malice and the fact that the jury did not award him actual damages although actual damages were shown, would not bar plaintiff's right to exemplary damages.

Al Hansen, Baker, for appellant.

Raymond Shelden, Ekalaka, Farr & Colgrove, Miles City, George W. Farr, Miles City, for respondents.

ADAIR Chief Justice.

This is an action for damages for malicious prosecution.

Upon issues being joined the cause was tried to a jury, resulting in the following verdict returned in open court:

'We the jury in the above entitled action, find the issues herein in favor of the plaintiff and against the defendant and assess the plaintiff's damages in the sum of none.

'We further find that the criminal action against the plaintiff was commenced and prosecuted against the plaintiff by the defendant without probable cause and maliciously and that plaintiff is entitled to punitive and exemplary damages against the defendant in the sum of 2,500 Twenty Five Hundred and no.

'Dated 23 of October 1947.

' Delmas H. Baird

'Foreman'

The verdict is on a typewritten form supplied to the jury, upon retiring, wherein were left blank spaces and lines for the filling in of the damages awarded, the date and the signature of the foreman. The jury, in lead pencil, inserted in the typed form the italicized words and figures, viz.: (1) ' none' at the end of the first paragraph; (2) ' 2,500.00 Twenty Five Hundred and no' at the end of the second paragraph; (3) ' 23 of October 1947' on the date line and (4) the signature of the foreman, ' Delmas H. Baird' at the bottom of the verdict.

Following the announcement of the verdict the jury was polled. There was no objection to the verdict as rendered nor was there any order reserving the case for argument or further consideration or granting any stay of proceedings. The verdict was accepted and ordered filed by the trial court and the jury was then discharged from the case.

Two days later defendant moved 'the court that judgment be given, rendered and entered by the court in favor of the defendant, R. A. Wilkoske, and against the plaintiff, that the plaintiff take nothing by this action, and for defendant's costs of suit, notwithstanding that portion of the verdict which purports to give and award to the plaintiff punitive and exemplary damages, by reason of the fact that the jury having first found by its verdict that the plaintiff is not entitled to any actual or compensatory damages, the plaintiff is not entitled to any exemplary damages; and, therefore, that part of said verdict purporting to assess exemplary damages must be disregarded.'

Defendant's motion for judgment notwithstanding the verdict was granted and, on January 8, 1948, a purported formal judgment was entered adjudging 'that plaintiff take nothing in this action' and that defendant have judgment for his costs. This is an appeal by plaintiff from the purported judgment so entered.

A verdict is not to be technically construed but it should be given such a reasonable construction as will carry out the obvious intention of the jury. In arriving at such intention of the jury reference may be had to the issues, the instructions and the evidence. Consolidated Gold & Saphire Min. Co. v. Struthers, 41 Mont. 565, 569, 111 P. 152.

The Pleadings. The pleadings of the plaintiff allege and those of the defendant admit that upon complaint, signed and sworn to by the defendant, R. A. Wilkoske, a criminal action was commenced in court against the plaintiff J. Wellington Fauver, and that under a warrant issued in such action plaintiff was placed under arrest and prosecuted and that such prosecution finally terminated favorably to the plaintiff Fauver.

Plaintiff's pleadings also aver that the criminal action against plaintiff was commenced and prosecuted by the defendant without probable cause and maliciously resulting in injury to plaintiff to his damage in the sum of $10,000. Exemplary damages in the sum of $2,500 and costs of suit are also claimed. The answer (1) denies that there was want of probable cause for plaintiff's arrest and prosecution, (2) denies that defendant was actuated by malice, and (3) denies that plaintiff suffered any damage by reason of the prosecution.

While the answer by way of a so-called 'separate and affirmative defense,' further alleges that before swearing to the criminal complaint against plaintiff, the defendant Wilkoske fully, fairly and truthfully stated all the facts to the county attorney who thereupon advised defendant 'that plaintiff was guilty of the crime of a misdemeanor' and that defendant acted upon such advice of counsel, and, while plaintiff treated such averments as new matter and replied thereto, yet we find nothing in the answer that could not have been proved by evidence admissible under a general denial. The evidence to establish the so-called affirmative defense was admissible as tending to negative or repel the imputation of malice and not as evidence tending to prove another independent issue herein and clearly would have been admissible under a general denial. Smith v. Davis, 3 Mont. 109; Stephens v. Conley, 48 Mont. 352, 370, 138 P. 189, Ann.Cas.1915D, 958.

The Issues. The issues submitted to the jury for determination were: 1. Was the criminal action commenced and prosecuted against plaintiff without probable cause? 2. Was defendant actuated by malice in instigating the prosecution? 3. Was plaintiff damaged by the prosecution?

The jury resolved each of these issues in favor of the plaintiff Fauver and against the defendant Wilkoske. The verdict declares: 'We, the jury * * * find the issues herein in favor of the plaintiff and against the defendant * * *' This is the jury's initial and general response to all the issues submitted. Gilmore v. Mulvihill, 109 Mont. 601, 98 P.2d 335. It constitutes an affirmative answer to each of the foregoing questions of fact. It is a determination that the defendant Wilkoske, without probable cause and maliciously, instigated the criminal prosecution against the plaintiff Fauver to plaintiff's damage in some amount. It is a verdict for the plaintiff,--a declaration by the jury that the plaintiff is entitled to prevail,--a determination that plaintiff has won his lawsuit.

The gist of an action for malicious prosecution is want of probable cause and malice. Smith v. Davis, supra, 3 Mont. 109, page 110; Martin v. Corscadden, 34 Mont. 308, 319, 86 P. 33. A verdict for plaintiff therefore implies a finding of want of probable cause and that the jury drew from such finding an inference of malice. 54 C.J.S., Malicious Prosecution, § 109, page 1101, note 53.

Under such circumstances the plaintiff is entitled to recover from defendant for the detriment done to and suffered by plaintiff from defendant's tortious acts 'a compensation therefor in money, which is called damages.' Sec. 8659, R.C.M.1935. From a determination of all the issues in the case in his favor the law presumes damage was done to and suffered by plaintiff in some amount. Compare Section 8706, R.C.M.1935; Long v. Davis, 68 Mont. 85, 90, 217 P. 667; Carnes v. Thompson, Mo.Sup. 1932, 48 S.W.2d 903, 905.

Here, however, the jury, in its verdict, went further and, in the concluding paragraph thereof, specifically declared: 'We further find that the criminal action against the plaintiff was commenced and prosecuted against the plaintiff by the defendant without probable cause and maliciously and that plaintiff is entitled to punitive and exemplary damages against the defendant in the sum of 2,500.00 Twenty Five Hundred and no.'

The specific finding that defendant had been guilty of malice warranted the jury in giving 'damages for the sake of example, and by way of punishing the defendant', sec. 8666, R.C.M. 1935; Martin v. Corscadden, supra, and these the jury gave in the amount stated. As was said in Cornner v. Hamilton, 62 Mont. 239, 245, 204 P. 489, 491, an action for damages for malicious prosecution: 'It was proper for the court to instruct the jury in this case on the subject of the allowance of exemplary damages, and proper for the jury, under the evidence, to allow the same (citing cases), and in this class of cases it is wholly within the province of the jury to fix the amount of damages to be awarded compensatory, as well as exemplary; and, unless its determination appears to have been influenced by passion, prejudice, or some improper motive, or unless the amount is outrageously disproportionate, either to the wrong done or the situation or circumstances of the parties, the court will not generally interfere with the verdict.'

Malice in law would be implied where defendant's conduct is unjustifiable. Cherry-Burrell Co. v. Thatcher, 9 Cir., 107 F.2d 65; Cashin v. Northern Pac. R. Co., 96 Mont. 92, 111, 28 P.2d 862; Moelleur v. Moelleur, 55 Mont. 30, 173 P. 419.

In Crystal Dome Oil & Gas Co. v. Savic, 51 Idaho 409, 411 6 P.2d 155, 156, referring to actions wherein defendant's conduct is shown to have been wanton, malicious or oppressive, the court said: 'In such cases, definite proof of actual damages is unnecessary. To show that a legal right has been violated is sufficient; the violation itself...