Puutio v. Roman

Decision Date02 April 1926
Docket Number5876.
Citation245 P. 523,76 Mont. 105
CourtMontana Supreme Court

Appeal from District Court, Carbon County; Hugh J. Miller, Judge.

Action by Sadie Mae Puutio against Steve Roman. Judgment for defendant, and plaintiff appeals. Reversed and remanded for new trial.

John G Skinner, of Red Lodge, and George S. Smith, of Billings, for appellant.

H. C Crippen, of Billings, and Frank P. Whicher, of Red Lodge, for respondent.


The record discloses that for a year and a half or 2 years prior to February 7, 1925, Sadie Mae Puutio, 20 years of age, and John Roman, about 7 months older, but under 21, had been going together much against the wishes and to the great annoyance of young Roman's parents and sisters. Numerous reports had been made to the parents that Miss Puutio was not a chaste person and they believed that the association of the young people was responsible for their son's gambling and drinking habits. They had sent him away from the home at Red Lodge on numerous occasions in the hope that he might be weaned away from his attachment for Miss Puutio, but upon his return each time he had resumed his association with her. About 2 weeks before February 7th they sent John to Minneapolis, but he returned to Billings on February 6th, called Miss Puutio on the long-distance telephone and talked with her. Later on the same day he called his parents, advised them that he was in Billings; that he had talked with Miss Puutio; and that she had directed him to remain in Billings until she came there on the day following. John was requested by his parents to come to Red Lodge on the morning train on February 7th but he disregarded the request; however, he left Billings by automobile about noon on February 7th and arrived in Red Lodge about 4 p. m. and went to the home of his parents. When John failed to arrive in Red Lodge by the train on the morning of February 7th, Steve Roman, his father, went to the office of the county attorney and, after making numerous representations and expressing his belief that Miss Puutio was leaving Red Lodge by the afternoon train for Billings for the purpose of marrying John, he procured the county attorney to draft a complaint, which, with his verification, reads as follows:

"That one Sadie Mae Puutio, a prostitute, on or about the 7th day of February, A. D. 1925, at Red Lodge in the county of Carbon, state of Montana, committed the crime of eloping with John Roman, a minor, under the age of twenty-one years, in that the said Sadie Mae Puutio did, then and there being, willfully, wrongfully and unlawfully entice away from his parents and guardians, with the intent to corrupt the said John Roman, contrary to the form, force and effect of the statute in such case made and provided, and against the peace and dignity of the state of Montana.

Said complaint, therefore, prays that a warrant may issue for the arrest of the said Sadie Mae Puutio and that she may be dealt with according to law. Steve Roman.

Subscribed and sworn to before me this 7th day of February, 1925. E. B. Provinse,

Justice of the Peace."

Upon filing this complaint, Roman procured a warrant which he caused to be delivered to the sheriff and by virtue of which Miss Puutio was arrested and confined in jail. Later, and without a hearing, that proceeding was dismissed, and thereafter this action to recover damages for malicious prosecution was instituted. After issues were joined, the cause was brought to trial to the court sitting with a jury. At the conclusion of all of the evidence the court directed a verdict in favor of the defendant, and judgment was duly entered thereon dismissing plaintiff's complaint. From that judgment this appeal is prosecuted.

The ultimate question for solution is: Did the trial court err in directing a verdict for the defendant?

It is settled in this jurisdiction, and elsewhere generally, that a cause should never be withdrawn from a jury, unless the conclusion necessarily follows, as a matter of law, that a recovery cannot be had upon any view which can reasonably be taken of the facts which the evidence tends to establish. Wagner v. Donald, 67 Mont. 114, 214 P. 1099; Conrad Mercantile Co. v. Siler, 74 Mont. ---, 241 P. 617. A motion for a directed verdict in favor of the defendant is in effect a demurrer to the plaintiff's evidence (McIntyre v. Northern P. Ry. Co., 56 Mont. 43, 180 P. 971); it admits as true all material facts in evidence which tend to establish plaintiff's cause of action (Mitchell v. Northern P. Ry. Co., 63 Mont. 500, 208 P. 903), whether such facts be produced by the plaintiff or the defendant (Pratt v. Kistler, 72 Mont. 356, 233 P. 600). Such facts, with every legitimate inference that may be drawn from them (Koerner v. Northern P. Ry. Co., 56 Mont. 511, 186 P. 337), are to be considered in the light most favorable to the plaintiff (Mitchell v. Northern P. Ry. Co., above). The fact that the testimony in behalf of the defense pleaded is uncontradicted will not justify a directed verdict in favor of the defendant, if the inferences to be drawn from it are open to different conclusions by reasonable men. First National Bank v. Wilson, 57 Mont. 384, 188 P. 371.

While recognizing the full force and effect of these rules, counsel for the defendant, nevertheless, insist that the court did not err in directing the verdict.

1. Because the complaint filed with the justice of the peace does not charge the commission of a crime, it is urged that it could not be the foundation for an action for damages for malicious prosecution, and decided cases are to be found which apparently support this contention. However, the overwhelming weight of authority, and the better reasoning, are opposed to that view.

In 38 C.J. 389, it is said:

"While there is some authority for the rule that no action for malicious prosecution will lie where the affidavit, complaint, indictment or information, or warrant, fails to state facts constituting a crime, according to the weight of authority, if the necessary elements of an action for malicious prosecution are present, the action will lie notwithstanding the affidavit, complaint, indictment or information, or warrant, did not allege facts constituting the crime charged or any crime known to the law. It is said that the fact that the acts charged do not constitute a criminal defense [offense] is material only in so far as such fact may affect the amount of actual damages suffered by the injured party."

In Newell on Malicious Prosecution, § 22, the author says:

"There is some authority for the proposition that, to serve as a basis for the action, the prosecution must be by a sufficient indictment or complaint. The weight of the authorities is, however, the other way, and good sense and reason are with these authorities; for when one maliciously, and without probable cause, subjects another to a criminal prosecution, the injury is the same whether it is instituted on a false statement of facts or a false conclusion of law. If the reason for the action lay solely in the danger of punishment in which the man is put, it might be otherwise. But the action lies because of the disgraceful imputation put upon him, the injury caused by his arrest, and the trouble and expense he is put to in defending himself."

A few of the leading cases which support these texts are: Potter v. Gjertsen, 37 Minn. 386, 34 N.W. 746; Beuthner v. Ellinger, 90 Wis. 439, 63 N.W. 756; Bell v. Keepers, 37 Kan. 64, 14 P. 542; McIntosh v. Wales, 21 Wyo. 397, 134 P. 274, Ann. Cas. 1916C, 273; Nelson v. Hill (N. M.) 232 P. 526.

It is our conclusion that the complaint herein states a cause of action.

2. It is urged that the evidence does not even tend to prove want of probable cause.

"Probable cause is defined to mean reasonable ground for suspicion supported by circumstances sufficiently strong in...

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