Johnson v. Walker-Smith Co.

• Decision Date: 21 October 1943
• Docket Number: No. 4767.,4767.
• Parties: JOHNSONv.WALKER-SMITH CO.
• Court: New Mexico Supreme Court

47 N.M. 310

142 P.2d 546

JOHNSON

v.WALKER-SMITH CO.

No. 4767.

Supreme Court of New Mexico.

Oct. 21, 1943.

Appeal from District Court, Chaves County; James B. McGhee, Judge.

Action by Cecil Johnson against Walker-Smith Company for malicious prosecution. From a judgment dismissing his complaint, plaintiff appeals.

Judgment affirmed.

An action would not lie for the malicious institution and prosecution of a civil action without probable cause, where defendant was not arrested or his property seized and he suffered no injuries except those necessarily resulting in all ordinary lawsuits, even though such action operated to impose expense and cast discredit upon defendant.

Frazier & Quantius, of Roswell, for appellant.

G. L. Reese, Sr., of Roswell, for appellee.

THREET, Justice.

This is an action for malicious prosecution growing out of a civil suit instituted by appellee against the appellant in the District Court of Chaves County, New Mexico.

Appellant filed his complaint in the court below alleging in substance as follows: That appellee brought suit against him maliciously and without cause; that said suit had terminated favorably; that he had been obliged to employ an attorney to defend him; that such suit by appellee constituted an abuse of process of the court; that appellant had always enjoyed excellent credit; that such suit was published in the credit bulletin; that an agent of appellee stated to various business men in and about Chaves County that it was necessary for appellee to sue appellant, and that wholesalers and others doing business with appellant called upon him for an explanation of the matter, jeopardizing his credit standing, causing him worry and embarrassment; that as a direct and proximate result of the acts of appellee he suffered actual damages in the sum of $1,000, and also prayed for exemplary damages in the sum of $5,000.

To the complaint appellee interposed the following motion to dismiss: “The plaintiff's alleged cause of action against the defendant is an action of malicious prosecution instituted by the plaintiff herein, and that said alleged cause of action is a civil action, and that the complaint and summons show upon their face that said action is an ordinary civil action and not accompanied by the arrest of the plaintiff or by seizure of his property and that no special injury was suffered by the plaintiff, except such alleged injuries as necessarily result in any and all civil suits to recover for like causes of action.”

The trial court sustained appellee's motion and dismissed the complaint. Appellant appeals to this Court, complaining that the trial court erred in so doing.

Only one error is assigned, to-wit: “The court erred in dismissing the complaint.” Other questions are argued in appellant's brief, but they will not be considered here in disposing of this case, as the theory of appellant's cause of action is one for malicious prosecution.

The question here is: Will an action lie for the recovery of damages sustained by the malicious institution and prosecution of a civil action without probable cause, where there has been no arrest of the plaintiff's person or seizure of his property by the defendant, and no injury sustained other than that necessarily resulting in all ordinary law suits?

No claim is made by appellant that he was arrested or that his property was seized. No injuries, other than those that would flow from an ordinary law suit, are claimed.

There are two rules on this question, the so-called English rule and the American rule. The matter is one of first impression in this State, and we will, therefore, consider it on its merits, free to determine which rule is more in harmony with justice and our public policy. An abundance of respectable authority may be found on both sides of the question. The courts seemingly are hopelessly divided.

The leading case in support of the American rule that the action may be maintained is Kolka v. Jones, 6 N.D. 461, 71 N.W. 558, 66 Am.St.Rep. 615. The North Dakota Court in this case, in an able opinion by Corliss, C. J., discussed both sides of the question, and reviewed many decisions touching upon the matter and came to the conclusion that the action could be maintained. Many of the states and, in some instances the federal courts, have followed the rule adopted by the North Dakota Court. The cases supporting this doctrine may be found under note 15, page 708, 34 Am.Jur., under the subject of malicious prosecution.

Some of the later decisions in support of this rule are Ackerman v. Kaufman, 41 Ariz. 110, 15 P.2d 966, and Slee v. Simpson, 91 Colo. 461, 15 P.2d 1084, 1085, 85 A.L.R. 412. It is interesting to note in Slee v. Simpson, supra, where, in following the American rule, we would be lead. This case grew out of a suit for personal injuries sustained in an automobile collision. There was a collision between the car of Bertha B. Slee and the automobile of Mrs. Gilpatrick, which was occupied by herself and her husband. Bertha B. Slee brought suit for damages against the Gilpatricks, who filed a cross-complaint for damages against Mrs. Slee. Judgment was rendered for Mrs. Slee. The Gilpatricks were represented by John H. Simpson, their attorney, in the personal injury suit. The malicious prosecution suit was based upon the cross-complaint filed in the original action for damages, and was filed by Mrs. Slee against the Gilpatricks, John H. Simpson, their attorney, and others.

The trial court sustained a demurrer to the complaint. The Supreme Court, in reversing the case, said: “In England prior to the statute of Marlbridge the English courts generally held that arrest of the person or seizure of his property, in a malicious prosecution action, is not essential to a recovery. After the passage of this statute, however, the English courts generally held that such interference is essential. This later doctrine of the English courts is usually designated in judicial opinions and by annotators as the English rule in such cases. But it is by no means universal or even largely recognized by the courts in the United States. Indeed, the ancient, not the modern English, rule is, according to the majority of our courts and annotators, the prevailing rule in the United States.”

And quotes as authority Hoyt v. Macon, 2 Colo. 113, as follows: “An action on the case may be maintained against one who maliciously, and without probable cause, attempts to defeat a claim to public lands made in good faith.”

The holding of the Colorado Court is to this effect: If a defendant in an ordinary law suit maliciously and without probable cause defends against the claim of the plaintiff he may be proceeded against in a suit for malicious prosecution for so doing.

It is interesting to pursue this theory to its logical conclusion. Suppose in Slee v. Simpson, supra, Mrs. Slee fails to maintain her suit for malicious prosecution against the Gilpatricks, the Gilpatricks would in turn have a cause of action against her for malicious prosecution, and so on ad infinitum.

[1] Notwithstanding the cases cited therein in support of the so-called American rule, an investigation of the authorities and a consideration of the principles involved lead us to the conclusion that the contrary doctrine is well established, and that an action will not lie for the prosecution of civil action with malice and without probable cause, where there has been no arrest of the person or seizure of the property of the defendant, or where the defendant has suffered no injuries except those which are the necessary result in all ordinary law suits.

This doctrine, we think, is sustained, not only by the greater weight of authority, but by the better reasoning.

Two of the leading cases in support of the doctrine we here adopt are Abbott v. Thorne, 34 Wash. 692, 76 P. 302, 65 L.R.A. 826, 101 Am.St.Rep. 1021, and Wetmore v. Mellinger, 64 Iowa 741, 18 N.W. 870, 52 Am.Rep. 465.

In Abbott v. Thorne, supra [34 Wash. 692, 76 P. 303], the court said: “The right of free allegations in a pleading has always been considered privileged. Courts are instituted to grant relief to litigants, and are open to all who seek remedies for injuries sustained; and unnecessary restraint and fear of disastrous results in some succeeding litigation ought not to hamper the litigant, or intimidate him from fully and fearlessly presenting his case. If the charges prove to be unfounded, costs have been prescribed by the Legislature as the measure of damages. Prior to the time when costs were allowed to the prevailing party, there was more reason for sustaining actions on the case; and, as a rule, the costs and expenses incident to an unsuccessful lawsuit will be sufficient to restrain actions which are founded purely on malice. While it is, no doubt, true that in some instances the peril of costs is not a sufficient restraint, and the recovery of costs is not an adequate compensation for the expenses and annoyances incident to the defense of a suit, yet all who indulge in litigation are necessarily subject to burdens, the exact weight of which cannot be calculated in advance, and a rule must be established which, as a whole, is the most wholesome in its effects, and accords in the greatest degree with public policy. If the rule were established that an action could be maintained simply upon the failure of a plaintiff to substantiate the allegations of his complaint in the original action, litigation would become interminable, and the failure of one suit, instead of ending litigation,...