Hill v. Carlstrom

• Decision Date: 29 April 1959
• Parties: Quentin R. HILL, Appellant, v. Charles H. CARLSTROM, Respondent.
• Court: Oregon Supreme Court

Page 645

338 P.2d 645

216 Or. 300

Quentin R. HILL, Appellant, v. Charles H. CARLSTROM, Respondent.

Supreme Court of Oregon, Department 2.

Argued and Submitted April 9, 1959.

April 29, 1959.

David W. Harper, of Portland, argued the cause for appellant. With him on the brief were Vergeer & Samuels, of Portland.

John C. Beatty, Jr., of Portland, argued the cause for respondent. With him on the brief were Dusenbery, Martin, Schwab, Beatty & Parks, Portland.

Before McALLISTER, Chief Justice, and LUSK, WARNER and MILLARD, Justices.

MILLARD, Justice pro tempore.

This is an appeal from an order of the Circuit Court of Multnomah County setting aside a judgment for $9,000 rendered upon a jury verdict and entering a judgment notwithstanding the verdict, and from an order overruling plaintiff's objection to the entire cost bill of defendant, all having to do with an action for malicious prosecution based upon the instigation of insanity proceedings, unsuccessfully brought against the plaintiff.

As and for his first assignment of error plaintiff states that 'there were sufficient facts to support a judgment in favor of the plaintiff in this malicious prosecution action.' This method of assignment is clearly in violation of Rule 16 of this Court. In fact, it does not point out succinctly and clearly wherein the court is claimed to have erred, as required. From a reading of the briefs and bill of execptions, we glean, however, that plaintiff claims as error the granting of a judgment notwithstanding the verdict. An examination discloses that such judgment was allowed on motion of defendant on the grounds that the plaintiff failed to prove lack of probable cause or malice on the part of defendant. Plaintiff contends in his brief that the trial court did not have authority under the statute to grant judgment notwithstanding the verdict on the grounds stated since defendant in a motion for directed verdict did not specify such grounds. However, it appears defendant did move for a directed verdict on the general ground that plaintiff had failed to establish his case. Plaintiff, during the argument here, properly withdrew his second assignment of error raising the same question, and hence this objection is waived. It should also be stated that at the same time, plaintiff withdrew his third assignment of error relating to the failure to grant plaintiff the right to amend his second amended complaint after trial.

Since defendant at the close of the trial did move for a directed verdict on general grounds of plaintiff's failure to establish his case, the same question is presented here as would have been presented by such motion. Allister v. Knaupp, 168 Or. 630, 642, 643, 126 P.2d 317. Incidentally, in that case, as here, the trial court similarly expressed its view that the motion might be granted, but at plaintiff's request would submit the case to the jury, and then if the verdict was incorrect, the question could again be raised by appropriate motion.

A motion for judgment notwithstanding the verdict, based upon the same grounds as a motion for a directed verdict, or failure to establish his case, will be sustained if appellant failed to prove any of the material allegations of his complaint. Jasper v. Wells, 173 Or. 114, 127, 144 P.2d 505; Allister v. Knaupp, supra.

Generally the essential elements of a cause of action for malicious prosecution are that a prosecution was commenced against the plaintiff by defendant, actuated by malice, terminated favorably to plaintiff, and was instituted without probable cause. Peterson v. Cleaver, 124 Or. 547, 553, 265 P. 428; Lane v. Ball, 83 Or. 404, 413, 160 P. 144, 163 P. 975; Stamper v. Raymond, 38 Or. 16, 62 P. 20. We do not find any prior case is this state based upon malicious prosecution arising out of insanity proceedings. However, it does appear that such an action will lie and that generally the elements are the same, except, of course, that an insanity proceeding must be instituted rather than a prosecution commenced.

'One who initiates civil proceedings against another which allege the other's insanity or insolvency is liable for the harm to the other's reputation caused thereby, if

'(a) the proceedings are initiated

'(i) without probable cause, and

'(ii) primarily for a purpose other than that of securing the adjudication of the claim on which the proceedings are based, and

'(b) except where they are ex parte, the proceedings have terminated in favor of the person against whom they are brought.' 3 Restatement of the Law of Torts, Sec. 678, p. 455.

It will be noted that the requirement of the Restatement that the proceedings must be instituted for a purpose other than of securing an adjudication is simply another way of saying that the proceedings must be actuated by malice. Such a construction is consistent with ORS 161.010(4) which defines 'malice' and 'maliciously' as importing 'a wish to vex, annony or injure another person, established either by proof or presumption of law.'

While there is authority for the view that an action for malicious prosecution of a civil action which does not interfere with the person or property of a party generally will not lie, there is a cause of action against a person who instigates an insanity proceeding against another maliciously and without probable cause. Reade v. Halpin, 193 App.Div. 566, 184 N.Y.S. 438, 439; Cragin v. Zabriskie, Sup., 12 N.Y.S.2d 871; 258 App.Div. 714, 15 N.Y.S.2d 136; Brandt v. Brandt, 297 Ill.App. 306, 17 N.E.2d 535; Pickles v. Anton, 49 N.D. 47, 189 N.W. 684; Lindsay v. Woods, Tex.Civ.App., 27 S.W.2d 263; Suhre v. Kott, Tex.Civ.App., 193 S.W. 417; Dauphine v. Herbert, La.App., 37 So.2d 829; Kellogg v. Cochran, 87 Cal. 192, 25 P. 677, 12 L.R.A. 104; Fisher v. Payne, 93 Fla. 1085, 113 So. 378; Brown v. Selfridge, 224 U.S. 189, 32 S.Ct. 444, 56 L.Ed. 727; Straka v. Voyles, 69 Utah 123, 252 P. 677; Puutio v. Roman, 76 Mont. 105, 245 P. 523; Griswold v. Griswold, 143 Cal. 617, 77 P. 672. See also, Note, 145 A.L.R. 711, et seq. The reasons therefor are well-stated in Reade v. Halpin, supra, 184 N.Y.S. at page 439, as follows:

'* * * In respect to its relation to an action for malicious prosecution, it much more closely in its characteristics resembles the characteristics of a criminal action. It is not instituted for the enforcement of an individual right or the redress of an indicidual wrong. The person who institutes it has nothing personally to gain or lose, and if acting in good faith his sole purpose is the protection of the alleged lunatic and the protection of society. In its consequences it may be more serious than a criminal prosecution. It seeks nothing less than the incarceration of the individual proceeded against. * * *'

While defendant argues that such action cannot be maintained in this state, our decision is to the contrary. We therefore pass on to plaintiff's main contentions to the effect that there was sufficient evidence of lack of probable cause and of malice to justity the trial court in submitting the case to the jury and hence the verdict should be allowed to control the judgment. Since the questions presented are the same as presented in the motion for a directed verdict, we are required to consider the evidence relating thereto in the record, and every legitimate inference that can be drawn from it in the light most favorable to plaintiff.

From the evidence it appears that an insanity proceeding was commenced by the filing of a verified petition prepared by a deputy in the office of the county clerk of Multnomah County, signed by Carolyn B. Hill, wife of the plaintiff, and by the defendant. In this petition it was alleged that the defendant was mentally ill 'as evidenced by the following facts: He is dangerous; has hallucinations; sees things that do not exist; is extremely nervous; is destructive; tears his clothes and breaks things up; has been mentally disturbed for at least three months.' The petition further alleges that by reason of such illness plaintiff was in need of treatment, care or custody. The printed portion further stated that plaintiff had relatives in this state, and following that was typed in the names of the wife and this defendant. It appears the typing and dictation were done by the deputy county clerk, after talking to plaintiff's wife, as well as defendant, and nowhere else does it appear that the defendant ever claimed in fact to be a relative, or that he told the clerk he was a relative.

Plaintiff at the time of the trial was 29 years of age. While under the age of 18 years he was in California, committed to a juvenile authority for robbery and grand theft. He was married to Helen Hill, and divorced in 1954, there being three children. He was married before that to a woman named 'Louise' and the marriage was annulled. At the time of the trial he was again married to Helen Hill, and Carolyn Hill was his wife at the time the lunacy proceedings were instituted. It further appears that on July 11, 1949, he was, on a plea of guilty, convicted in the United States District Court for the Northern District of California of a violation of the Motor Theft Act, 18 U.S.C.A. § 2311 et seq., sentenced to three years, and on the seventh day of March, 1947, was convicted in the Superior Court of the State of California for Sutter County of the crime of forgery, although he claims he was not guilty of this and offers explanation of the other charge.

Plaintiff was at one time in the army, where he suffered a leg injury, and was hospitalized. Defendant's Exhibit 4(6), which is a letter signed by plaintiff, dated September 18, 1949, discussing his army experience, stated, 'During my stay at the General Hospital I had a nervous breakdown, and they would not release me and shipped me to the Veteran's Hospital at Waco, Texas for observation', and that he received a 'medical discharge'. Further, his certificate of disability for discharge shows, 'Recommended for...