Grorud v. Lossl

• Court: United States State Supreme Court of Montana
• Citation: 48 Mont. 274
• Parties: GRORUD v. LOSSL ET AL.
• Decision Date: 02 December 1913

48 Mont. 274

GRORUD
v.
LOSSL ET AL.

Supreme Court of Montana.

Dec. 2, 1913.

Appeal from District Court, Silver Bow County; Jeremiah J. Lynch, Judge.

Action by A. A. Grorud against J. P. Lossl and others. From a judgment for plaintiff and an order denying a new trial, defendants appeal. Affirmed in part, and reversed in part.

Jos. C. Smith, of Dillon, and Breen & Jones, of Butte, for appellants.

B. K. Wheeler, M. F. Canning, and P. E. Geagan, all of Butte, for respondent.

BRANTLY, C. J.

Action for damages for malicious prosecution. The plaintiff had verdict and judgment. The defendants have appealed from the judgment and an order denying their motion for a new trial.

On behalf of the defendants the contention is made that the court erred in denying their separate motions for nonsuit, because it was not shown that either of the corporations authorized or had any connection with the prosecution on account of which this action was brought, and because the evidence failed to disclose that Lossl acted without probable cause. The contention is also made that the evidence is insufficient to justify the verdict, and that the court committed prejudicial error in charging the jury.

The prosecution of plaintiff arose out of the following circumstances: For the 22 months prior to June 12, 1911, the plaintiff had been employed at Divide, in Silver Bow county, as the agent of the Oregon Short Line Railway Company and also of the American Express Company. The defendant J. P. Lossl Company was, during the same time, engaged in a general merchandise business at Wisdom and Dewey, some distance to the west of the line of railway, in Beaverhead county. The Divide & Gibbonsville Stage Company was engaged in the transportation of freight and passengers from Divide to Wisdom and other points to the west. J. P. Lossl was the president and manager of both corporations, and controlled their business. Goods purchased by the merchandise corporation was received at Divide and conveyed by the other corporation to Wisdom and Dewey. To provide for the payment of freight and express charges, the defendant Lossl would, from time to time, send to the plaintiff checks drawn in favor of the railway or express company--oftener in favor of the former--upon the bank at which the deposits of the defendant corporations were kept, usually amounting to $150 at a time. In some instances a single check for this amount was sent, in others two or three checks aggregating this amount, and in others the amount would be larger, according to the amount of the charges to be met at the particular time. The sums thus sent covered also the compensation of plaintiff for the accommodation extended to the defendant corporations. This was fixed at $15 per month. The plaintiff kept an account of the transactions between himself and the defendant corporations. In making his monthly remittances to the accounting officers of the railway and express companies, he would send the checks, which were accepted by these companies as cash, and collected in due course from defendant's bank. At the end of each month plaintiff remitted to Lossl a statement, which was supposed to contain a list of all the checks received by him on account of either of the defendant corporations, as well as of the items of charges in favor of the railway and express companies. Usually this statement showed a balance in favor of the defendantcorporations. This course of business was pursued for the 22 months during which the plaintiff was employed. During the early months of 1911 defendant Lossl, upon an examination of the accounts of the defendant corporations, discovered that, out of the whole number of checks received by the plaintiff, the latter had failed to account for several, the aggregate amount of which he did not then know exactly. The amount was then thought by him to be more than $1,000. Thereupon, after consultation with the county attorney of Silver Bow county, he caused the arrest of the plaintiff on a charge of larceny as bailee of moneys belonging to the J. P. Lossl Company to the amount of $1,000. The arrest was made on June 12, 1911, on a warrant issued upon a complaint filed with a justice of the peace. Plaintiff was held until he was admitted to bail. At a preliminary hearing thereafter had by the justice, the plaintiff was discharged.

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