Miller v. Schnitzer

• Citation: 78 Nev. 301,371 P.2d 824
• Decision Date: 29 May 1962
• Docket Number: No. 4454,4454
• Parties: Russell F. MILLER, Appellant, v. Reta SCHNITZER, Respondent.
• Court: Supreme Court of Nevada

Page 824

371 P.2d 824

78 Nev. 301

Russell F. MILLER, Appellant, v. Reta SCHNITZER, Respondent.

No. 4454.

Supreme Court of Nevada.

May 29, 1962.

Harry E. Claiborne, Las Vegas, for appellant.

Morton Galane, Las Vegas, for respondent.

THOMPSON, Justice.

Reta Schnitzer commenced an action against Dr. Russell F. Miller to recover damages, averring that he had maliciously and without probable cause charged her with the crime of embezzlement, caused her arrest, confinement in jail, and subsequent appearance at a preliminary hearing to defend herself, at which hearing she was exonerated. The jury returned a verdict for her and awarded $15,000 as special damages, $30,000 as general damages, and $50,000 as punitive damages. Judgment was entered accordingly. The defendant's motion for new trial was denied. He appeals. The main question presented is whether the judgment totaling $95,000 is excessive under the evidence presented.

1. The evidence. The record on appeal presents a mass of evidence, both oral and documentary. There appears to be a substantial conflict as to most, if not all, of the material issues involved. The jury evidently chose to accept the evidence favoring the plaintiff's cause. Therefore, in briefly stating the case, we shall refer only to the evidence relied upon by the plaintiff to support the judgment.

Reta, a divorcee, lived in Las Vegas with her eight year old daughter. In 1954 she obtained employment with an architectural firm, subsequently becoming its office manager, which position she held when she met Russell in May 1957. She saw him from time to time thereafter, but it was not until the end of 1958, after Russell had obtained a divorce, that steady dating occurred. By April 1959 a daily companionship had come about and there was discussion of marriage. His apartment was but a block or two from hers, and it was not an inconvenience to live together as man and wife a good part of the time, which they did. The marriage ceremony did not take place because Reta's parents were planning a visit in 1960, and all wished to have them witness the event. Furthermore, Russell had not yet established a favorable rapport with the daughter. They exchanged keys to each other's apartment. The doctor kept a reasonable clothing supply at each 'home.' He gave Reta 'housekeeping money' when he started spending most of his time at her apartment, which she used for food, cleaning, liquor, etc. That money was kept in a little box and was considered (by her, at least) to be their joint money. The little box usually contained $400 or $500, but at the time of their quarrel, to be later mentioned, contained $180.

During these happy times the doctor wished to deposit in a safe place a tidy sum which he had saved to pay 'back taxes.' Reta told him about a vault at her employer's place of business, whereupon 150 one hundred dollar bills were put in manila envelopes, sealed and placed in the vault.

In July 1959, only about two months after they had established the relationship just described, an event occurred causing its abrupt termination. At four a. m. the doctor's answering service called at Reta's apartment. Upon being informed that the doctor was not there, Reta was asked to go to the doctor's apartment because it was an emergency and the doctor's phone at his apartment had been busy. Reta obliged. Upon entering she noticed female clothing strewn around the front room and, when she peeked into the bedroom, another form was in bed with the doctor. Having been sincere in her marital intentions, she found this breach of trust on the doctor's part to be unforgivable, and told him that they 'were through.'

Two or three days later Reta removed the manila envelopes from the vault. She wanted to 'worry him about the money.' When the doctor demanded its return, a dispute developed over the total amount that had been put in the envelopes. Because of that dispute, Reta thought it wise for an attorney to arrange for the opening of the envelopes and return of the money. This was done. The president of a bank related that Reta had brought the envelopes to his bank, where they were opened and found to contain 150 one hundred dollar bills. Reta thereupon purchased a $15,000 cashier's check payable to Dr. Russell F. Miller. The doctor received delivery on that check on July 23, 1959. Notwithstanding, the doctor on August 4, 1959 swore to a criminal complaint charging Reta with the crime of embezzlement, asserting that Reta, as a bailee of sums in excess of $100, unlawfully appropriated and used the monies for 'purposes other than that for which the same were entrusted, with the intent to defraud the owner thereof.' The complaint was filed with the justice of the peace, and warrant of arrest issued before the police department had completed its investigation. The complaint was prepared at the request of Dr. Miller and not at the request of the police department.

Reta was arrested at her place of employment. Coemployees witnessed the event. She was taken to the police department, booked, photographed, fingerprinted, undressed and examined by the matron, and thereafter placed in a cell with other prisoners, one of whom asked, 'What are you in for this time?' She remained in jail for approximately one hour before bail was arranged. The Las Vegas Review Journal, circulation 27,000, and the Las Vegas Sun, circulation 19,000, daily newspapers, each had carried a news story, relating a version of the embezzlement charge. After a preliminary hearing, the justice of the peace dismissed the case.

As office manager of the architectural firm, Reta was paid a yearly salary of $8,402.45. Primarily because of the publicity given the case, Reta's employment was terminated September 10, 1959. She remained in Las Vegas for 2 or 3 weeks and, though she did not personally seek other employment, friends inquired for her and were informed that her services were not desired. She became nervous and irritable, could not sleep, and received medical attention. School children were making life miserable for her daughter. Reta determined that she could no longer make a life for herself and daughter in Las Vegas, and moved to southern California. On October 5, 1959 she obtained work with H. L. Yo Company. This job lasted until October 25, 1959 when her resignation was requested because the one in charge had learned of the Las Vegas felony accusation. She thereafter sought employment at various places requiring a security clearance, but to no avail. In January 1960 she obtained work at Tops Records, as an executive secretary, where she remained for six months. She was paid $500 a month. She voluntarily resigned, to accept a similar position with Information Systems, Inc., at $6,000 a year, which position she held at time of trial.

Evidence designed to establish Dr. Miller's wealth was received. It discloses that his net worth, according to a financial statement given a bank in April 1959, was about $51,000; that his 'statement of income' in 1957 was $40,647.21 gross and $15,466.07 net, and in 1958 $66,304.92 gross and $28,703.49 net. He was the principal stockholder and president of Miller Enterprises, Inc., conducted an active medical practice, a drive-in restaurant and a Tastee-Freeze business. As one of a group of medical men, he owned a 1/9 interest in three corporations: COS Incorporated, which owned the building and improvements of a medical arts center; LPX Incorporated, which conducted a laboratory business in that center; and Paradise Pharmacy Incorporated, which carried on a pharmaceutical business.

2. The problem of damages. Compensatory damages consisting of $15,000 special damages and $30,000 general damages were awarded Reta. The amount given for special damages is not fully supported by the record. The damages claimed by the complaint as special in nature were (a) the attorney's fee paid in defense of the criminal charge; (b) lost earnings; (c) cost of medical care; and (d) impaired earning capacity for three years. The total amount requested was given. No evidence was offered as to the cost of her medical care. Nor does the record establish that there has been an impairment of her ability or capacity to perform the work for which she is trained and qualified. Her claim is not for a physical injury diminishing her ability to perform. Cf. Sierra Pacific Power Co. v. Anderson, 77 Nev. 68, 358 P.2d 892. Rather it is essentially for a damaged reputation presently resulting in a lower annual income than previously enjoyed. Damage to reputation, among other things, is an item of general damage and presumably was included in the $30,000 general compensatory damage award.

The record does support an award of special compensatory damages in the following particulars: (a) $3,000 attorney's fee paid in defense of the criminal charge; (b) $2,800 earnings loss while out of work from September 10, 1959 to some time in January 1960 (except for two weeks' employment during October 1959); (c) $2,200 earnings loss by reason of reduced salary from January 1960 to trial in December 1960, all resulting in a total proven dollars and cents loss of $8,000.

We turn to consider the general compensatory damage award of $30,000. In a malicious prosecution case, the plaintiff may recover general money damages to compensate for injury to reputation (in the instant case Reta's reputation for truth), humiliation, embarrassment, mental suffering and inconvenience, provided they are shown to have resulted as the proximate consequence of the defendant's act. These elements of damage are wholly subjective. The monetary extent of damage cannot be calculated by reference to an objective standard. The extent of such damage, by its very nature, falls peculiarly within the province of the trier of fact, in this case, a jury. Brownfield v. F. W. Woolworth, 69 Nev. 294, 248 P.2d 1078, 251 P.2d 589; Burch v. Southern P. Co., 32 Nev. 75, 104 P. 225; Taylor v....