Halladay v. State Bank of Fairfield
| Decision Date | 10 February 1923 |
| Docket Number | 5025. |
| Citation | 212 P. 861,66 Mont. 111 |
| Parties | HALLADAY v. STATE BANK OF FAIRFIELD ET AL. |
| Court | Montana Supreme Court |
Appeal from District Court, Teton County; John J. Green, Judge.
Action by Earl Halladay against the State Bank of Fairfield and another. From a judgment for defendants, plaintiff appeals. Affirmed.
Cole & Packer, of Choteau, and Norris, Hurd & Rhoades, of Great Falls, for appellant.
Cooper Stephenson & Hoover, of Great Falls, for respondents.
This is an action to recover damages for malicious prosecution. The complaint alleges that the defendants, with intent to injure the good name and reputation of the plaintiff, on October 16 1916, appeared before the county attorney of Teton county and falsely, wrongfully, unlawfully, and maliciously caused to be instituted in the justice's court of Chouteau township criminal proceedings charging the plaintiff with obtaining from the defendant bank, upon false representations and pretenses, the sum of $3,750; that a warrant was issued out of that court delivered to the sheriff of Teton county, and on December 17, 1919, plaintiff was arrested and remained in the custody of the officer from that day until the 1st day of January, 1920. He was brought from the state of Oklahoma taken into court, and examined upon the charge. After a hearing the justice of the peace, upon motion of the county attorney, discharged him and dismissed the proceedings. Since that time no other complaint has been instituted or prosecuted against him upon that or any other charge.
The defendants by answer admit the arrest, prosecution, and discharge of the plaintiff, but deny the accusation of malice or arrest without probable cause.
The cause was tried before the court and a jury. At the end of plaintiff's case the district court granted a motion for a directed verdict, upon the grounds that the complaint did not state a cause of action, that there was not sufficient evidence to connect the defendant corporation with the institution of the prosecution, and that as to neither defendant was there sufficient evidence to show that the prosecution was instituted without probable cause or with malice, and directed a verdict in favor of the defendants. Hence these appeals.
The plaintiff's five specifications of error all relate to the failure of the court to give effect to the evidence touching malice and want of probable cause. In the spring of 1916 the plaintiff was residing in the town of Fairfield, in Teton county. He conceived the idea of building a gristmill there, but did not have sufficient capital to erect the plant and put it in operation. About this time he met the defendant Elmer Genger, who was the manager of the Townsite Company of Fairfield, a corporation owning property in and about that place. Genger, who later became vice president of defendant bank, suggested to plaintiff that he could borrow sufficient money to build the gristmill, but that it would be necessary to arrange the matter with Mr. Kelso, who was then in charge of the bank. Prior to this time the plaintiff had been doing his banking business with the Hirschberg Bank, at Chouteau, and was then owing that institution the sum of $4,600, the defendant bank $2,200, besides other debts. After laying his plans before Mr. Kelso, it was agreed that the bank would loan him the money to erect the proposed mill, the loan to be repaid out of the profits of the mill after operations began. It was estimated that the cost of the mill would be about $1,500. He then asked for an additional loan of $500. Then it was that, upon Mr. Kelso's request, the statement made the basis of the charge of obtaining money on false pretenses was furnished by plaintiff.
Among other property there were listed therein 160 acres of land located 6 miles east of the town of Fairfield. Final proof had been made thereon under the Reclamation Act (U. S. Comp. St. § 4674 et seq.), but patent could not issue until the water charges for irrigation were fully paid. They were unpaid at that time. This land the plaintiff had purchased of Mr. Genger, about 6 months prior to the making of the statement, for about $2,800. The plaintiff's estimate of $5,000 as the value of the land was based upon information to the effect that 160 acres of similar land, in close proximity to this land, had sold for that figure. The other tract listed in the statement was 160 acres of unimproved land adjoining the town of Fairfield, and was valued by him at $100 per acre. Genger was familiar with land values in that vicinity. Fred W. Kelso, the manager of the defendant bank, testified that he was familiar with lands under the proclamation project and their value, had made some loans on farms which formed part of it, and was aware of the fact that the government had a lien on all the lands under the irrigation ditch. Included in the statement were also 450 acres of wheat, which the plaintiff estimated would produce an average of 15 bushels to the acre, which at the minimum price of $1.35 per bushel, would bring something over $9,000. In the statement the estimate was placed at $8,000. Altogether the plaintiff estimated he was worth $27,000 over and above his obligations.
Let us assume, for the purposes of these appeals, that the plaintiff had made out a prima facie case. Still he was obliged to go further, and show that the criminal proceeding was infected with malice and was begun without probable cause. In this class of actions probable cause is the foundation of the case. Upon the existence of such belief that question rests. So that, when a party has established want of probable cause, malice will be presumed. Martin v. Corscadden, 34 Mont. 308, 86 P. 33; Beadle v. Harrison, 58 Mont. 606, 194 P. 134; Hawley v. Richardson, 60 Mont. 118, 198 P. 450; Cornner v. Hamilton, 62 Mont. 239, 204 P. 489. To prove want of probable cause and that the defendants were actuated by malice, the plaintiff called Mr. George W. Magee, the county attorney, and proved that Genger had communicated to him his version of the facts. His testimony was substantially as follows:
Genger exhibited the statement, and stated that he had submitted it to his attorney, Mr. Coffey, who had advised him to see witness, as county attorney, and relate the facts in the case; that by the statement it appeared that the plaintiff owned two tracts of land, when in fact he did not own either of them, did not have title to them; that Genger had also been told by Ray Halladay, the brother of the plaintiff, that he did not own the horses as he claimed, or any horses at all; that he (Genger) did not say he would disprove his ownership in the land, but just simply said that Mr. Kelso would testify that, when the statement was made, it recited the fact that the plaintiff was the owner of the land, and also that he owned a number of horses; that Kelso would testify that ...
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