Park v. Security Bank & Trust Co.

• Decision Date: 26 June 1973
• Docket Number: No. 44032,44032
• Parties: Gerdi PARK, Appellant, v. SECURITY BANK AND TRUST COMPANY, a corporation; and Montgomery Ward and Company, Inc., a corporation, Appellees.
• Court: Oklahoma Supreme Court

Page 113

512 P.2d 113

Gerdi PARK, Appellant, v. SECURITY BANK AND TRUST COMPANY, a corporation; and Montgomery Ward and Company, Inc., a corporation, Appellees.

No. 44032.

Supreme Court of Oklahoma.

June 26, 1973.

Rehearing Denied July 24, 1973.

Syllabus by the Court

1. The elements entering into and necessary to be shown in a suit for damages for malicious prosecution are: (1) That the prosecution was commenced against plaintiff; (2) that it was instituted or instigated by defendant; (3) that it was malicious; (4) that it has been legally and finally terminated in plaintiff's favor; (5) that it was without probable cause.

2. In an action for malicious prosecution the proof necessary to establish malice for actual damages is different from the proof necessary to establish punitive damages. In an action for actual damages, the action complained of need not be actuated by ill-will or hatred toward the person prosecuted, but it is sufficient if the known and necessary consequence of the act done will injure the person. In an action for punitive damages, there must be express or actual malice, and the action complained of must be actuated by ill-will or hatred, or wilfully done in a wanton and oppressive manner and in conscious disregard of the other's rights.

Appeal from the District Court of Comanche County; Toby Morris, Judge.

Appellant appeals from the order of the trial court denying her motion for a new trial in an action to recover damages for dishonoring a check and subsequent criminal proceedings brought against her.

Affirmed.

Rhoads, Johnson & Antonelli by Sam H. Johnson, Lawton, for appellant.

Lawton Burton and L. Myron Burton, Lawton, Granville Tomerlin and Jack High, Oklahoma City, for appellee, Montgomery Ward & Co., Inc.

Ralph W. Newcombe, Lawton, John B. Doolin, Oklahoma City, for appellee, Security Bank & Trust Co.

IRWIN, Justice:

Appellant Gerdi Park (plaintiff) instituted this action against appellees to recover damages allegedly sustained by her when Security Bank & Trust Co., (Bank) dishonored her personal check given to Montgomery Ward & Co. (Ward); criminal charges were filed against her by Ward; a warrant for her arrest issued; and the criminal charges subsequently dismissed.

The jury returned a verdict for plaintiff in the sum of $239.94 and judgment was rendered thereon. Plaintiff appealed from the order overruling her motion for a new trial.

The record discloses that plaintiff gave Ward a check in the amount of $49.41 as a down payment on some drapes. The check was duly presented to Bank and it was returned with a notation 'account closed'. Thereafter, Ward filed a criminal complaint and a warrant was issued for plaintiff's arrest on a bogus check charge. After the deputy sheriff arrived at plaintiff's place of employment, which was a P-X at Fort Sill, telephone calls disclosed plaintiff, during all times pertinent, had ample funds in Bank to cover this check. The deputy then left and the charges were dismissed.

The check in question did not have plaintiff's name printed on it. Bank denied in its answer that it wrongfully dishonored plaintiff's check and alleged that the check did not bear a proper signature and the signature was so poorly written that it was illegible and could not be identified as plaintiff's signature. Bank submitted evidence that it thought the check was drawn on the account of a former customer of the bank by the name of 'Poole' and that account had been closed.

Plaintiff sought to recover from both defendants the sum of $119.97 in actual damages and $350,000.00 for consequential damages for the dishonor, arrest and prosecution. Plaintiff also sought to recover $100,000.00 against Ward for punitive damages. The trial court refused to instruct the jury upon the issue of punitive damages.

Plaintiff first contends the trial court erred in not granting her a new trial as the damages were grossly inadequate and appeared to have been given under the influence of passion or prejudice.

In support of this contention plaintiff relies on 12 O.S.1971, § 651, sub-paragraph 4, which pertains to a new trial being granted for excessive or inadequate damages, appearing to have been given under the influence of passion or prejudice. This sub-paragraph was amended in 1953 by adding inadequate damages.

It is now generally recognized, in the absence of a statute to the contrary, that a verdict may be set aside on the grounds of inadequate damages either on appeal or by the trial court under circumstances similar to those which justify the setting aside of an excessive verdict. 22 Am.Jur.2d 'Damages' § 398.

Before a verdict of the jury will be set aside as excessive it must appear that the verdict is so excessive as to strike mankind, at first blush, as being beyond all measure unreasonable and outrageous and such as manifestly shows the jury to have been actuated by passion, partiality, prejudice or corruption. Austin Bridge Co. v. Christian, Okl., 446 P.2d 46. Since inadequacy of damages is considered under circumstances similar to those which justify the setting aside of an excessive verdict, we merely substitute the word 'inadequate' for the word 'excessive' in the above rule.

To determine if the damages awarded are inadequate it is necessary to summarize the pertinent evidence and consider the jury verdict in conjunction with the above rule. The sheriff's office called plaintiff early on a Friday morning and advised her a deputy was on the way to her place of employment on this bogus check charge. After the mistake was resolved the deputy left and plaintiff stated she was embarrassed, humiliated, upset and nervous; that another employee gave her a tranquilizer and she continued to work until 7:00 that evening; that she complained of pain in her back and legs, and after she completed her work about 4:00 p.m., on Sunday she went to the emergency room at the Fort Sill hospital and the doctor gave her some medicine and sent her home; and she remained away from work the next 10 days and during this time she received heat treatments and exercises at the base hospital.

The only persons with plaintiff when the deputy arrived at her place of employment were her superiors, who were the ones that straightened out the misunderstanding. The first employee arrived as the deputy was leaving and did not observe the incident. During the day plaintiff telephoned her neighbors and told them about the incident and discussed the matter further when she got home from work. Plaintiff stated her fellow employees never discussed the incident in a malicious or mean kind of way and they were just kidding her; that she had not tried to borrow money since this incident and had no evidence her credit had been injured in any way; that she had no reason to believe her reputation had been damaged from this incident.

Plaintiff visited a psychiatrist two years after this incident, at the request of her attorney. The doctor's testimony reflects that during the second World War, when plaintiff was a young woman, she was subjected to a considerable emotional trauma when she was picked up by the Gestapo and placed in a labor camp for about four months; that this check incident, including the presence of the deputy sheriff at the base P-X, caused her to become frightened, upset, nervous and resulted in muscle tension; that this check incident was merely a stimulus that reactivated her old anxieties from the Gestapo experience and brought about an anxiety tension reaction resulting in her remaining home from work for ten days.

It appears plaintiff was the one that related this check incident to her fellow employees as well as her neighbors. Thus, the jury could logically have concluded plaintiff brought about much of her own alleged disgrace, embarrassment and humiliation; and that plaintiff's muscle tension and anxiety tension which caused her pain was the result of her previous Gestapo experience.

Plaintiff proved $119.97 damages for loss of wages and this was not disputed. There was no evidence of any medical expenses. Owing to the special nature of damages plaintiff claimed for shame, embarrassment and humiliation, which the law leaves largely to the jury's common sense, judgment and/or discretion, without a definite yard stick, or rule of measurement, to go by, this Court is virtually restricted to merely ascertaining if there is any competent evidence reasonably tending to support the jury's verdict. John A. Brown Company v. Shelton, Okl., 391 P.2d 259. Also see Browning v. Ray, Okl., 440 P.2d 721. We conclude there is such evidence to support the verdict.

It is the function of the jury to properly evaluate the various elements of alleged...