Obeginski v. James
| Decision Date | 26 July 1966 |
| Docket Number | No. 583,No. 2,583,2 |
| Parties | A. R. OBEGINSKI, Plaintiff-Appellee, v. Mary JAMES, Defendant-Appellant. Cal |
| Court | Court of Appeal of Michigan — District of US |
Walter A. Kurz, Richard S. Brody, Goodman & Brody, Detroit, Harold Goodman, Detroit, of counsel, for appellant.
Raymond D. Munde, Manikoff & Munde, Birmingham, for appellee.
Before LESINSKI, C.J., and McGREGOR and T. G. KAVANAGH, JJ.
The defendant began construction of a house in 1957. The plaintiff, a ceramic tile mason, was engaged to do the tile work on the house. The defendant maintains that she was the general contractor for the job who employed the plaintiff directly to work under the direction of one Freeman Brandt who was defendant's supervisor. The plaintiff claims that he was a subcontractor employed by Freeman Brandt who was the general contractor on the job.
In any event plaintiff did the work and it was unsatisfactory to the defendant. She made a complaint to the Oakland County prosecuting attorney charging that the plaintiff was an unlicensed contractor who violated the builders licensing law 1 and the plaintiff was tried and acquitted of the charge.
Thereafter the instant suit was brought for malicious prosecution and the jury awarded plaintiff $3000 damages.
The various assertions of error urged in this appeal are properly considered in three questions:
1. Did the plaintiff-appellee fail to establish a prima facie case of lack of probable cause requiring a directed verdict as a matter of law?
2. Was there such great weight of evidence to the contrary that the verdict should have been set aside or the defendant-appellant's motion for judgment non obstante veredicto granted?
3. Did the trial court err in its rulings limiting the examination and not limiting the cross examination of defendant-appellant's witnesses and instructing the jury?
With reference to the first question, it is firmly established that if the facts are not in dispute, the existence or want of probable cause is a matter of law to be determined by the court. Rankin v. Crane (1895), 104 Mich. 6, 61 N.W. 1007; Merriam v. Continental Motors Corporation (1954), 339 Mich. 546, 64 N.W.2d 691; Renda v. International Union, UAW (1962), 366 Mich. 58, 114 N.W.2d 343, and Drobczyk v. Great Lakes Steel Corp. (1962), 367 Mich. 318, 116 N.W.2d 736.
It is equally well established that if the facts are in dispute, since probable cause is a mixed question of law and fact, it should be left to the determination of the jury under proper instruction. Fine v Navarre (1895), 104 Mich. 93, 62 N.W. 142; Slater v. Walter (1907), 148 Mich. 650, 112 N.W. 682, and Hall v. American Investment Co. (1928), 241 Mich. 349, 217 N.W. 18.
The appellant testified that the appellant came to his house, informed him that she wanted an estimate on the tile work to be done at her house and in response to his inquiry informed him that the builder was Freeman Brandt whom the appellee knew. He then went to Freeman Brandt, informed him of his conversation with appellant that she wanted the appellee to do the work, and Brandt approved.
Under the builders licensing statute, supra, if a subcontractor does work for a licensed builder the subcontractor does not have to be licensed. If the facts were as appellee related, he violated no law.
On January 3, 1961, the appellant wrote the appellee a letter in which she stated that there were certain defects in the tile work and advised him that since he had no license at the time he did the work it was a criminal offense for him to have performed it. She stated in the letter that her only concern was to get the work corrected and bring the unpleasant matter to a close.
She denied that her purpose in signing the criminal complaint was to get the work corrected.
The jury was free to...
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