LaLone v. Rashid
| Decision Date | 21 June 1971 |
| Docket Number | Docket No. 7233,No. 1,1 |
| Citation | 191 N.W.2d 98,34 Mich.App. 193 |
| Parties | Frank R. LaLONE, Plaintiff-Appellee, v. George E. RASHID and Daniel Rashid, and severally, Defendants-Appellants |
| Court | Court of Appeal of Michigan — District of US |
Harold M. Ryan, Detroit, John J. Murray (of counsel), Warren, for defendants-appellants.
Howard Schwartz, Southfield, for plaintiff-appellee.
Before V. J. BRENNAN, P.J., and QUINN and O'HARA *, JJ.
In this case we navigate a previously uncharted judicial waterway. The legislature originally passed a statute in 1846 which, with inconsequential changes since then, provides:
'Every person who shall, for vexation and trouble or Maliciously, cause or procure any other to be arrested, attached, or in any way proceeded against, by any process or civil or criminal action, or in any other manner prescribed by law, to answer to the suit or prosecution of any person, without the consent of such person, or where there is no such person known, shall be liable to the person so arrested, attached or proceeded against, in treble the amount of the damages and expenses which, by any verdict, shall be found to have been sustained and incurred by him; and shall be liable to the person in whose name such arrest or proceeding was had in the sum of $200 damages, and shall be deemed guilty of a misdemeanor, punishable on conviction by imprisonment in the county jail for a term not exceeding 6 months.' M.C.L.A. § 600.2907 (Stat.Ann.1962 Rev. § 27A.2907). (Emphasis supplied.)
For whatever reason, no case we have been able to find in this jurisdiction specifically construes this enactment as it applies to an action for malicious prosecution. This court did advert to it in Leeseberg v. Builders Plumbing Co. (1967), 6 Mich.App. 321, 331, 149 N.W.2d 263 (leave denied (1967), 379 Mich. 768) in what must be considered Obiter dicta. We repeat as to the issue here what the court observed in Leeseberg:
'Although this statute has been in effect in substantially this language for more than 100 years, no Michigan case interpreting it has been found.'
We sketch the factual background necessary to an understanding of the legal issues before us.
Defendants are owners of the patent covering a sophisticated electronic device. They employed plaintiff to attempt to make specific improvements upon it in order to increase its marketability. Apparently he succeeded to some degree. He had not been paid for his work. Neither were certain others whose help he enlisted. There was some rather hazy oral agreement about a stock participation by plaintiff in a corporation to be formed and his share therein. Agreement was never reached and defendants finally told plaintiff his services were no longer needed. Soon thereafter he went to the premises which had been rented by defendants, and in which he had worked on the device, and removed certain property in which he claimed to have had a proprietory interest. Thereafter, according to plaintiff, defendants came to him insisting that he resume working for them on the same basis as before or 'he would be sorry'. Subsequently, one of the defendants obtained a warrant for plaintiff's arrest on the charge of larceny in a building. He was arrested and after a preliminary examination bound over to circuit court. On motion therein the information was quashed. Defendant was discharged.
He then instituted an action for malicious prosecution. The case was tried to a jury. They returned a general verdict of $30,000. The trial judge tripled it under what he considered the proper interpretation of the statute hereinbefore set forth. From the $90,000 judgment, defendants appeal of right. They assign error in five particulars. We think several of them blend into each other, and we consider the issues on appeal to be:
1) Was the question of whether defendants made a full and fair disclosure to the prosecuting attorney of their knowledge of the alleged illegal acts properly for the jury? This is to say in legalese, 'was the question of whether defendants had probable cause to have plaintiff arrested one of law for the court or one of fact for the jury?'
This issue, is, of course, threshold. If there was no fact issue in this regard, then defendants are correct in their contention that this essential first step question was one of law and should not have been submitted to the jury at all, and that they had the protection extended under Belt v. Ritter (1969), 18 Mich.App. 495, 503, 171 N.W.2d 581, and other cases without number previously decided in our state.
The rule in Michigan on the question of whether want of probable cause in a malicious prosecution action is a question of law or one of fact was stated in Obeginski v. James (1966), 4 Mich.App. 90, 92, 143 N.W.2d 579, 580, a case cited by plaintiff-appellee. This court there said:
(Emphasis supplied.)
See, also Sottile v. DeNike (1969), 20 Mich.App. 468, 174 N.W.2d 148. Generally, see Anno: Probable Cause or Want Thereof, In Malicious Prosecution Action, as Question of Law for Court or of Fact for Jury (1963), 87 A.L.R.2d 183.
In the case at bar the facts were in dispute. The plaintiff claimed the property he took belonged in part to him as a member of a joint venture. Defendants denied the existence of a joint venture and claimed that plaintiff had no proprietory interest in the items taken from the shop. If plaintiff's version of the parties' relationship was believed by the jury, it would then appear that the defendants did not make a full and fair disclosure to the prosecutor. Lack of probable cause would then be established.
This court, when faced with a similar fact situation in Obeginski, supra, said (4 Mich.App. p. 93, 143 N.W.2d p. 581):
'There was evidence in the record from which the jury could conclude that the appellant informed the appellee that Freeman Brandt, a licensed contractor, was the builder and that she didn't make a full and fair disclosure to the prosecutor when she signed the criminal complaint and that she signed it in order to effect the correction of the defective tile work.
Since the question of probable cause in the instant case was also in dispute the court below properly submitted it to the jury.
2) Defendants' second issue is the one to which we must write as a case of first impression. Defendants thus phrase it: 'Did the trial court err in instructing the jury to consider exemplary damages and then treble the verdict under Michigan Statutes Anno: 27A.2907, M.C.L.A. § 600.2907? The trial court held 'No'. The appellants contend 'Yes'.'
We hardly need mention that the stated question assumes half the conclusion in its premise. To answer it we must first determine whether the trial court did in fact instruct the jury it could properly consider exemplary damages as part of its general verdict.
We quote the crucial excerpt from the charge.
'Now if you determine that the plaintiff has sustained the burden of proof of malicious prosecution or malicious prosecution and false imprisonment, or malicious prosecution and conspiracy, then you will pass on the question of damages, and here again damages must be given by a preponderance of the evidence. Damages are to be reasonable. They are not to be speculative or conjectural, nor are they to be concerned with costs of the prosecution, such as the common term court costs. They are such items as will fairly and reasonably compensate a person for their injuries.
'Damages for malicious prosecution may embrace the plaintiff's expense in protecting himself, his loss of time, his deprivation of liberty, and the society of his friends or family, and his injury to personal mortification.
'Now there has been comment by counsel about exemplary damages, and I will describe damages more particularly now. I should have said to you earlier, and I say to you now, the law of facts as given to you by counsel are not the law of the case. What I am giving you are the instructions which are the law of the case. And so you follow my instructions and that is the rule.
'Now the law does not provide for any exemplary damages unless there is malice, but since there is malice charged here, the question of exemplary damages is before you. So exemplary damages may be allowed in cases where the element of malice is found, for actual damages for injured feelings may be increased or aggravated by the degree of malice. Exemplary damages are not 'smart money' or punishment for the defendant. They are intended only as compensatory damages for the supposed aggravation of the injury to the feelings by the wanton and reckless act of the defendant through the malicious act charged or found. And this arises because the wrongdoer has acted recklessly, willfully, and maliciously.
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