Johnson v. Horn

• Citation: 283 P. 427,86 Mont. 314
• Decision Date: 30 December 1929
• Docket Number: 6536.
• Parties: JOHNSON v. HORN.
• Court: Montana Supreme Court

283 P. 427

86 Mont. 314

JOHNSON v. HORN.

No. 6536.

Supreme Court of Montana

December 30, 1929

Appeal from District Court, Ravalli County; James M. Self, Judge.

Action by Irvin Johnson against John E. Horn. Judgment for plaintiff, and defendant appeals. Affirmed.

H. C Packer, of Hamilton, and A. A. Alvord, of Thompson Falls, for appellant.

Harry H. Parsons, of Missoula, and J. D. Taylor, of Hamilton, for respondent.

ANGSTMAN J.

Plaintiff by verdict, was awarded $100 actual and $1,000 exemplary damages against defendant in an action for malicious prosecution. Judgment in conformity with the verdict was entered. Defendant's motion for a new trial was denied and he appealed from the judgment.

The first specification of error challenges the sufficiency of the complaint, which sets forth, in substance, that the defendant maliciously and without probable cause charged the plaintiff with the theft of a horse, by complaint in the justice's court at Hamilton, and maliciously and without probable cause caused him to be arrested; that plaintiff was incarcerated in the county jail of Ravalli county by the sheriff of that county for a period of four days; that the action, after investigation by the county attorney, was dismissed and thus terminated in plaintiff's favor; and that plaintiff was damaged because of the acts of the defendant in a stated amount.

1. Defendant contends that the complaint is faulty because it does not allege that defendant was responsible for prosecuting or continuing the proceeding after its instigation, but affirmatively alleges that the imprisonment was by the sheriff of the county.

In Stephens v. Conley, 48 Mont. 352, 138 P. 189, 193, Ann. Cas. 1915D, 958, this court declared that a complaint for malicious prosecution must set forth, and the plaintiff must prove: "(a) That a judicial proceeding was commenced and prosecuted against him; (b) that the defendant was responsible for instigating, prosecuting, or continuing such proceeding; (c) that there was a want of probable cause for defendant's act or acts; (d) that he was actuated by malice; (e) that the proceeding terminated favorably to plaintiff; and (f) that plaintiff suffered damage, with the amount thereof." To the same effect is Cornner v. Hamilton, 62 Mont. 239, 204 P. 489, 491.

The complaint here meets these requirements. It sufficiently alleges that defendant was responsible for instigating the proceedings against plaintiff and it need not allege that he thereafter was responsible for prosecuting or continuing them.

2. Defendant contends that the court erred in denying his motion for a new trial for alleged misconduct of the jury. In support of the motion two affidavits were filed. One was by G. S. Bailey, who was one of the jurors in the case. It sets forth that another juror, Chilson, while the jury was deliberating upon its verdict, remarked in the presence of the jury "that he knew the horse a long time, knew how the horse got the wire cut, and that it was a slick-ear and did not belong to Horn." It further sets forth that from conversation had by affiant with two other jurors, he believes they were prejudiced against the defendant.

Subject to a single exception not made to appear here, the verdict of a jury may not be impeached by the affidavit of one or more of the jurors. State v. Lewis, 52 Mont. 495, 159 P. 415; State v. Asher, 63 Mont. 302, 206 P. 1091; Komposh v. Powers, 75 Mont. 493, 244 P. 298; State v. Gies, 77 Mont. 62, 249 P. 573; Sutton v. Lowry, 39 Mont. 462, 104 P. 545.

The other affidavit was by Retta Guay, which recites that during a recess, while the trial was in progress, Juror Chilson talked with two of the witnesses about the horse in question. It recites that from the conversation which she overheard she "came to the conclusion that the said Chilson knew about the horse himself and was questioning said witnesses in regard to the time when the horse was at Blankenship's ranch." No showing was made by defendant as to when he or his attorneys learned the facts set forth in the affidavit. Hence, under the rule announced in the case of Sutton v. Lowry, supra, the trial court was justified in disregarding the affidavit upon considering the motion for new trial.

3. Defendant contends that the award of exemplary damages is excessive and the result of passion and prejudice on the part of the jury, for which a new trial should have been granted. Exemplary damages are allowable in this state when the defendant has been guilty of oppression, fraud, or malice, and are awarded for the purpose of punishing the defendant. Section 8666, Rev. Codes 1921. In assessing such damages the jury should take into consideration all the attendant circumstances surrounding the act complained of and may consider the wealth and pecuniary ability of the defendant. Winterscheid v. Reichle, 45 Mont. 238, 122 P. 740; Ramsbacher v. Hohman, 80 Mont. 480, 261 P. 273. The matter of fixing the amount of exemplary damages rests largely in the discretion of the jury. Cornner v. Hamilton, supra; Ramsbacher v. Hohman, supra. Some courts hold that the award for exemplary damages may not be disproportionate to the actual damages sustained, while others declare that the only requirement is that the exemplary damages must bear some relation to the injury complained of and its cause. 17 C.J. 994, notes 3 and 4.

In this state it rests wholly within the province of the jury to fix the amount of damages, both compensatory and 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." Cornner v. Hamilton, supra. The courts have not established a definite formula to be followed in ascertaining whether an award for exemplary damages is excessive. As a consequence many courts hold that because an award of punitive damages is ten times the amount of actual damages awarded, as here, does not of itself demonstrate that the award is excessive. Ford v. McAnally, 182 N.C. 419, 109 S.E. 91; Carleton v. Fletcher, 109 Me. 576, 85 A. 395; Louisville & Nashville R. R. Co. v. Ritchel, 148 Ky. 701, 147 S.W. 411, 41 L. R. A. (N. S.) 958, Ann. Cas. 1913E, 517; Plotnik v. Rosenberg, 55 Cal.App. 408, 203 P. 438.

There are cases in which awards of exemplary damages have been held excessive under certain circumstances because disproportionate to the actual damages sustained. Among them may be cited Mitchell v. Randal, 288 Pa. 518, 137 A. 171; Rider v. York Haven Water & Power Co., 251 Pa. 18, 95 A. 803; Hunter v. Kansas City Rys. Co., 213 Mo.App. 233, 248 S.W. 998; Hall Oil Co. v. Barquin, 33 Wyo. 92, 237 P. 255; Pendleton v. Norfolk & W. Ry. Co., 82 W.Va. 270, 95 S.E. 941, 16 A. L. R. 761; Falkenberg v. Neff (Utah) 269 P. 1008. But in all of those cases the evidence upon which the verdicts were founded was before the court.

Here the evidence introduced in the case is not before us. We are not advised of the situation or circumstances of the parties. The financial ability of the defendant is not disclosed. An award of $1,000 exemplary...