Huntley v. Harberts

Decision Date06 April 1978
Docket NumberNo. 11981,11981
Citation264 N.W.2d 497
PartiesLawrence HUNTLEY, Plaintiff and Respondent, v. Ralph W. HARBERTS, Defendant and Appellant.
CourtSouth Dakota Supreme Court

Gerald L. Reade of Brady, Kabeiseman & Reade, Yankton, for plaintiff and respondent.

James E. Doyle of Doyle & Bierle, Yankton, for defendant and appellant.

BOTTUM, Circuit Judge.

This is an appeal from a judgment awarding the plaintiff and respondent, Huntley, $20,260.00 in damages in an action for malicious prosecution. The defendant and appellant, Harberts, appeals from the judgment entered pursuant to the jury verdict and the trial court's denial of both his motion for a new trial and his motion for judgment notwithstanding the verdict.

The appellant has alleged a number of errors as foundations for his appeal. Although we find that there was adequate evidence presented to the jury from which the jury could conclude that the plaintiff had sustained a cause of action for malicious prosecution against the appellant by a preponderance of the evidence, the damages awarded were not sufficiently supported by the evidence presented at trial and the award cannot be allowed to stand.

RELEVANT FACTS

This case arises from an incident which occurred on June 23, 1975. Although the case originates from the events which took place on that day, the encounter between Huntley and Harberts on June 23rd was not their first. There was evidence presented from which the jury could infer that Harberts had been a difficult customer for some time. On June 23rd, Harberts went to pick up a boat motor which Huntley had repaired for him at Huntley's repair shop, located in the garage behind Huntley's house. While most of the work was covered by warranty, there was a bill for $6.24 outstanding. Huntley indicated that before Harberts could take the motor home, he would have to pay the bill of $6.24. Harberts testified that he was surprised by this mandate but surmised that Huntley was serious.

At this point, the agreement about what transpired between Huntley and Harberts terminates. Huntley testified that Harberts came towards him in a threatening manner and that Huntley dropped the screw driver with which he had been working and picked up a rubber hose. Huntley testified that he never struck Harberts and never threatened to strike him. The testimony of Ray Medema, a witness to the incident, corroborates the facts as related by Huntley. On the other hand, Harberts testified that Huntley both threatened to harm him and did hit him with the rubber hose.

Following the June 23rd incident, Harberts went to see a private attorney and related to him the same set of facts concerning the alleged assault and battery to which he testified at the subsequent trial for malicious prosecution. The private attorney advised Harberts that under the facts which Harberts had related to him, including Harberts' allegation that Huntley had struck him with a rubber hose, the crime of assault and battery had technically been committed.

The next day Harberts went to the State's Attorney, Mary Dell Cody, and told her the same set of alleged facts which he had recited to the private attorney, including the fact that Ray Medema had witnessed the incident. After discussing the incident with the State's Attorney, Harberts testified that he signed a blank complaint which was later filled in with the details of the alleged assault and battery. The State's Attorney did not investigate the incident by talking with Ray Medema prior to filing the charges. It should be noted that on the night of the incident in question, Harberts went to see Medema and Medema told Harberts that although he observed Huntley's hostility toward Harberts, he neither heard Huntley threaten him nor saw Huntley strike him.

Huntley was arrested pursuant to the assault and battery complaint and was released on a personal recognizance bond. Notice of the assault and battery charge appeared in the Yankton paper. A preliminary hearing was held at which Huntley, Harberts and Medema all testified. Robert C. Ulrich, Law Magistrate, dismissed the complaint for lack of probable cause.

Huntley then began this action for malicious prosecution. At a jury trial he recovered $20,260.00. The amount of $5,260.00 was awarded as actual damages, including $260.00 which Huntley paid in attorney fees to defend himself on the assault and battery charge. The amount of $15,000.00 was awarded as exemplary damages.

ISSUES PRESENTED

The appellant has raised the following issues on appeal:

ISSUE ONE: The appellant alleges that the respondent failed to prove by a preponderance of the evidence the commencement or continuation of the criminal proceeding.

ISSUE TWO: The appellant alleges that the respondent failed to prove by a preponderance of the evidence the legal causation of the criminal proceeding by the appellant against the respondent.

ISSUE THREE: The appellant alleges that the respondent failed to prove by a preponderance of the evidence the absence of probable cause for the criminal proceeding.

ISSUE FOUR: The appellant contends that the respondent failed to prove by a preponderance of the evidence the presence of malice.

ISSUE FIVE: The appellant alleges that the trial court committed reversible error by giving certain instructions and refusing to give several instructions proposed by the appellant.

ISSUE SIX: The appellant objects to the amount which the jury awarded to the respondent in damages on the basis that (1) there is insufficient evidence in the record to justify the award and (2) the award was the result of passion and prejudice on the part of the jury.

ISSUE ONE

In McIntyre v. Meyer, 81 S.D. 417, 136 N.W.2d 351 (1965), this Court reiterated the elements of a cause of action for malicious prosecution which had been set forth in Kunz v. Johnson, 74 S.D. 577, 57 N.W.2d 116 (1953) and numerous earlier South Dakota cases. The first of these six elements is the commencement or continuation of an original criminal or civil judicial proceeding by the respondent.

The crux of the appellant's attack on the proof of this first element is that the signing of the complaint in blank and the lack of verification by oath required by SDCL 23-19-2 and SDCL 23-21-5 render the criminal proceedings improperly commenced and therefore insufficient to support an action for malicious prosecution. We find no merit in this argument.

First, the defendant admitted in his answer, which was signed by him, that he had commenced the criminal proceedings in question. Therefore, the respondent was relieved of the burden of proving that element of the offense at trial. See SDCL 15-6-8(b) and Mattoon v. Fremont, E. & M. V. R. Co., 6 S.D. 301, 60 N.W. 69 (1894).

Even if Harberts had not made this admission in his answer, appellant's argument cannot prevail. Where, as here, the issue of an alleged technical deficiency in the complaint was not raised during the course of the original criminal proceedings, the respondent was arrested on the assault and battery charge and submitted to the jurisdiction of the court and the charge was resolved on its merits, the appellant cannot now question the validity of the criminal process which he set into motion. See the cases cited at 36 A.L.R.2d 786, 809 § 8, and the supplement thereto.

ISSUE TWO

The second issue raised by the appellant involves the sufficiency of the respondent's proof of the second element of a cause of action for malicious prosecution, the legal causation of the criminal proceeding by Harberts against Huntley. The appellant's basic argument is that the State's attorney was the legal cause for the assault and battery prosecution and that her failure to interview Ray Medema before proceeding with the charge conclusively demonstrates that Harberts was not the legal cause for the prosecution.

Once again, Harberts' admission in his answer, that he "procured the arrest of Huntley" and "swore to the complaint," relieved the respondent of the burden of proof on the legal causation issue. See discussion under Issue I, supra.

Furthermore, through this attack, the appellant is arguing the defense which he forwarded at trial, i. e., that his full and fair disclosure of all the pertinent facts to a private attorney and the State's Attorney defeats the cause of action for malicious

prosecution. Whether or not a defendant in an action for malicious prosecution has made a full, fair and complete disclosure of all the material facts in good faith to a private attorney and/or a State's Attorney which provides him with a defense to an action for malicious prosecution is a question of fact for the jury. See, e. g., Wren v. Rehfeld, 37 S.D. 201, 157 N.W. 323 (1916), Larsen v. Johnson, 47 S.D. 202, 197 N.W. 230 (1924) and Braathen v. Weller, 44 S.D. 118, 182 N.W. 637 (1921). As this Court stated in Braathen, supra : "Whether or not a party communicates to counsel all the facts bearing upon the guilt of the accused known to him, or whether or not the accused was acting in good faith upon the advice of counsel, are purely questions of fact to be determined by the jury." At 638.

ISSUE THREE

The third element of an action for malicious prosecution as set forth in McIntyre, supra, and Kunz, supra, and earlier cases, corresponds to the third issue which the appellant has raised, the absence of probable cause for the criminal proceeding. In the case of Braathen, supra, this Court held that the dismissal of a charge by a court for lack of probable cause is sufficient proof of the absence of probable cause to satisfy that element of a cause of action for malicious prosecution.

In this case, the magistrate's order dismissing the complaint was admitted into evidence without objection. Therefore, whether or not any further evidence was presented to show the absence of probable cause need not even be considered.

ISSUE FOUR

The fourth issue raised by the appellant involves the defendant's...

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