Luther v. First Bank of Troy

Decision Date30 January 1943
Docket Number7022
PartiesHOWARD LUTHER, Respondent, v. FIRST BANK OF TROY, a corporation, and OLE BOHMAN, Appellants
CourtIdaho Supreme Court

MALICIOUS PROSECUTION-TRIAL-INSTRUCTIONS-DAMAGES-NEW TRIAL-APPEAL AND ERROR.

1. In stating issues to jury, the allegations, denials and admissions by both parties should be clearly though completely stated in instructions outlining the issues as presented by pleadings of all parties.

2. In action for malicious prosecution, instruction that jury must find from evidence that want of probable cause and malice co-existed, and that "probable cause" is existence of such facts as would excite the belief of a reasonable mind, acting on facts within knowledge of prosecutor, that person charged was guilty of the crime for which he was prosecuted, was proper.

3. In action for malicious prosecution, where instruction adequately setting forth the defense of want of probable cause was given, reviewing court refused to approve further instruction defining probable cause, but would not hold that giving further instruction was necessarily prejudicial.

4. Actions for malicious prosecution are not favored in law.

5. The essential requirements to prove an action for "malicious prosecution" are a prosecution, terminating in favor of plaintiff, fact that defendants were prosecutors and were actuated by malice, want of probable cause, and amount of damages sustained by plaintiffs.

6. The basis for damages for malicious prosecution is shame humiliation and actual injury to reputation and business physical injury, if any, and expenses sustained by false arrest without probable cause.

7. Though amount of damages is peculiarly a matter for jury to determine under facts of each case, reviewing court can nevertheless determine whether damages are so large as to indicate passion and prejudice.

8. Though court may reduce merely excessive verdict not indicating influence of passion and prejudice, the only constitutional protection if passion and prejudice evidently entered into jury's deliberation, not only as to amount of verdict but as contributing to its returning any verdict at all, is to grant new trial.

9. In action for malicious prosecution, wherein actual damage of $300 for expenses incurred was proved, verdict for $5,350 general and punitive damages was excessive and required new trial.

Appeal from the District Court of the Second Judicial District, in and for Latah County. Honorable A. L. Morgan, District Judge.

Action for malicious prosecution. Judgment for plaintiff. Reversed.

Judgment reversed. Costs awarded to appellants.

Verner R. Clements for appellants.

In order to sustain an action for malicious prosecution it was incumbent upon respondent to prove that there was upon the part of the appellants, want of probable cause for the prosecution alleged to have been malicious. (Russell v Chamberlain, 12 Idaho 299, 85 P. 926; Horner v. Chamberlain, 12 Idaho 304, 85 P. 927; Nettleton v. Cook, 30 Idaho 82, 163 P. 300; Castles v. Lynch, 36 Idaho 636, 212 P. 970; Lowe v. Skaggs Safeway Stores, Inc., 49 Idaho 48, 286 P. 616; Donaldson v. Miller, 58 Idaho 295, 7 P.2d 853.)

In Idaho, probable cause is meant the existence of such facts and circumstances as would excite the belief in a reasonably prudent person, or in a reasonably prudent mind, acting on the facts and circumstances of the complaining witness at the time, that the person charged was guilty of the crime for which he was prosecuted. (Nettleton v. Cook, 30 Idaho 82, 163 P. 300; DeLamater v. Little, 32 Idaho 358, 182 P. 853; Douglas v. Kenney, 40 Idaho 412 at 423, 233 P. 874.)

In a malicious prosecution action, exemplary damages awarded cannot be disproportionate to the amount of actual or compensatory damages awarded. The allowance of a disproportionate award of exemplary damages shows passion and prejudice of the jury. In such a case, where the evidence will justify a reasonable and proportionate award of exemplary damages, the award will be decreased to a reasonable amount, not disproportionate to the actual or compensatory damage sustained. (15 Am. Jurs., Pars. 296, 297 and 298, at pages 738, 739 and 740; 34 Am. Jur., Par. 103 at page 765, 38 C. J. 450; Randal v. Kline's, Inc., (Mo.) 49 S.W.2d 112; Burch v. Lockwood, 247 Ill.App. 66; Mullen v. Gause, (La.) 109 So. 31; Melson v. Calhoun, (La. App.) 120 So. 115.)

F. C. Keane and Eugene McCann for respondent.

Compensatory damages in a malicious prosecution action are allowed for disgraceful imputation, injury caused by arrest, expense in defending prosecution, loss of time, deprivation of libery, injury to fame, reputation, character and mental suffering. (Ray Wong v. Earle C. Anthony, Inc., (Calif. ) 247 P. 894.)

Exemplary or punitive damages are recoverable in a malicious prosecution action where wrongdoers' action was wanton, malicious, outrageous and was actuated by ill will and a desire to injure. (Ross v. Kerr, 30 Idaho 492.)

GIVENS, J. Holden, C.J., Ailshie, J., and Sutton, D.J., concur. BUDGE, J., dissenting.

OPINION

GIVENS, J.

--Respondent, while living at Troy, Idaho, had for approximately 13 years transacted business with the appellant First Bank of Troy, of which appellant Ole Bohman was president. December 1, 1936, respondent and his wife signed a chattel mortgage and renewal notes for $ 1000 and $ 500, which they understood to be all they owed the bank; subsequently, they borrowed $ 100 and $ 50. Respondent held a sale September 29, 1937, at which Mr. Bohman acted as clerk, the proceeds of which were to be applied on the mortgage indebtedness. Respondent claimed that after the sale he advised Mr. Bohman he was going to Deary the following day to sell his wheat and would return to settle with the bank, also, that Mr. Bohman advised him the proceeds of the sale (not then stated, but amounting to about $ 2039.40) were sufficient to take care of his indebtedness. Mr. Bohman denied this conversation.

September 30, respondent sold the wheat to Mark P. Miller Milling Company, through its agent Gust Dahl. Respondent advised Mr. Dahl the wheat was mortgaged but that the debt had been taken care of, and he was given a check for approximately $ 1800, which he cashed the same day at Moscow. Friday, October 1, respondent went to Spokane, after mailing a letter to Mr. Bohman telling him he would settle with him Monday. Respondent and his family moved to Prichard, Idaho, Saturday, October 2. Monday, October 4, he and his son went to the bank at Troy. He was there advised he owed the bank $ 3600--a note for $ 416 in addition to the notes above listed, and a conditional sales contract for some machinery, a threshing bill, and a seed bill, which had been left with the bank for collection. Respondent stated he owed the bank only $ 1650 and the interest and that was all he was there to pay. An argument ensued, during which, respondent claimed, Mr. Bohman called Mr. Dahl on the telephone and advised him the bank was holding him responsible for buying mortgaged wheat and that he had better do something about it. Mr. Bohman denied this telephone conversation also. Respondent left the bank after stating if the bank didn't want to settle, he would go to court.

That evening Mr. Dahl went to Moscow to consult his employer and then went to J. C. Peterson, a justice of the peace. The justice of the peace telephoned the prosecuting attorney, who, on the information given him over the phone, typed the criminal complaint. Mr. Dahl and Mr. Peterson went to the office of the prosecuting attorney, a few blanks in the complaint were filled in, and it was signed by Mr. Dahl and a warrant issued. There is no evidence the prosecuting attorney was advised that Luther claimed his account with the bank had been taken care of by the proceeds of the sale or that Luther had advised Mr. Bohman the day of the sale that he was going to Deary the next day to sell the wheat and would return to settle with the bank. The complaint charged respondent with the crime of grand larceny by wilfully, knowingly, feloniously, and with intent to steal, selling 2447 bushels of grain which were mortgaged to the bank, which mortgage was at that time unsatisfied. (Sec. 44-1017, I. C. A.)

October 5, respondent learned a warrant for his arrest had been issued. He immediately went to Moscow where he consulted with and employed an attorney, paying him $ 250 for his services, after which he returned to his home at Prichard.

A preliminary hearing was had October 18 upon the above criminal charge, and at the conclusion thereof respondent was released on the ground no crime had been committed, and the action was dismissed.

Respondent filed the present action, asking for $ 300 special damages and $ 10,000 general and punitive damages because of the above criminal prosecution. Appellants answered, and at the close of the trial the jury found for respondent in the sum of $ 5350, from which verdict and judgment thereon appellants have appealed.

Appellants specify as error that certain admissions contained in their answer were not properly submitted to the jury, that the court erred in giving instruction No. 6, that the evidence is insufficient to sustain the verdict, and that the damages were excessive.

While the failure to instruct the jury as to all of the admissions made by appellants in their answer was not reversible error, in view of the fact that a new trial is granted upon other grounds, it is pertinent to observe that in stating the issues to the jury, the allegations, denials, and admissions by both parties should be clearly though succinctly stated in the instructions outlining the issues as presented by the pleadings of all parties.

Instruction No. 5 was as follows:

"You...

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13 cases
  • Cogswell v. C. C. Anderson Stores Co, 7383
    • United States
    • Idaho Supreme Court
    • 1 Abril 1948
    ... ... to grant a new trial. Luther v. First Bank of Troy, ... 64 Idaho 416, 133 P.2d 717; Neil v. Idaho & ... ...
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    • Idaho Supreme Court
    • 15 Junio 1983
    ...Warren v. Eshelman, 88 Idaho 496, 401 P.2d 539 (1965); Checketts v. Bowman, 70 Idaho 463, 220 P.2d 682 (1950); Luther v. First Bank of Troy, 64 Idaho 416, 133 P.2d 717 (1943). Alternatively, a trial judge may peremptorily reduce an excessive jury award, order remittiturs of damages, or cond......
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    ...but only challenges the giving of any instruction on this issue.2 This rule was more particularly detailed in Luther v. First Bank of Troy, 64 Idaho 416, 133 P.2d 717 (1943).3 Evidence as to defendant's wealth is discussed, infra.4 This becomes apparent only upon examination of the original......
  • Summerfield v. Pringle
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