Puutio v. Roman

• Decision Date: 29 April 1927
• Docket Number: 6093.
• Parties: PUUTIO v. ROMAN.
• Court: Montana Supreme Court

255 P. 730

79 Mont. 226

PUUTIO v. ROMAN.

No 6093.

Supreme Court of Montana

April 29, 1927

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

Action by Sadie Mae Puutio against Steve Roman. Judgment for plaintiff, and defendant appeals. Affirmed.

C. C Rowan, of Red Lodge, for appellant.

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

STARK J.

This is an action to recover damages for an alleged malicious prosecution of plaintiff by the defendant upon a criminal charge. It has heretofore been before this court (Puutio v. Roman, 76 Mont. 105, 245 P. 523), and was remanded to the district court for a new trial. The facts upon which it is based are sufficiently set forth in the opinion on the former appeal, and they need not be repeated here.

Upon the retrial in the district court, the jury returned a verdict in favor of the plaintiff for the sum of $10,000 actual and $10,000 exemplary damages, and a judgment was entered thereon. Defendant made a motion for a new trial upon various grounds, amongst them being that the evidence was insufficient to justify the verdict and that the damages awarded were excessive and appeared to have been given under the influence of passion or prejudice. Upon a consideration of this motion, the court made an order to the effect that the same should be sustained unless the plaintiff should consent to a reduction of the judgment to the sum of $6,000. The plaintiff duly filed her written consent to the reduction in conformity with the terms of the court's order. From the judgment as thus modified the defendant has appealed and has made six specifications of error.

1. The first and fourth specifications are based upon a contention that the complaint does not state a cause of action, for the reason that it fails to allege that the prosecution of the criminal action against the plaintiff finally terminated in her favor. This contention is without merit. Paragraph 5 of plaintiff's complaint contains allegations, showing sufficiently the fact that the prosecution of the criminal action had been terminated in plaintiff's favor.

2. Specifications of error 2 and 3 relate to the admission of certain testimony in the plaintiff's case in chief. While the complaint in the criminal action instituted by the defendant in the justice's court did not state facts sufficient to charge the commission of a crime, that fact did not preclude plaintiff from maintaining an action for malicious prosecution based on the proceedings taken as a result of the filing of such complaint. Puutio v. Roman supra.

One of the probative facts which the defendant deemed necessary to state in this complaint, and which he did state positively under oath in order to procure the warrant for plaintiff's arrest, was that she was a prostitute. The testimony to which the above specifications of error are directed is that of two witnesses which tended to establish from physical conditions, that plaintiff was not what the defendant charged her to be, and that of several other witnesses who testified to an acquaintance with the plaintiff for various periods of time preceding the date of her arrest, and a knowledge of her general reputation for chastity and morality at the place of her residence in and around Red Lodge, and that her general reputation in the named particulars was good in and about the places where she had resided.

In civil actions, as a general rule, the character of the plaintiff is not in issue until the same is attacked by the defendant, and, until so attacked, it is presumed to be good, and there is no necessity or propriety in giving affirmative proof of such character. "This, as a general rule, is undoubtedly the true rule; but in an action for the malicious prosecution of a criminal action, where the main question in the case is whether the defendant had probable cause for instituting such proceedings, an exception should be made. In such action the plaintiff must prove a negative-this is, prove that the prosecutor did not have probable cause to believe him guilty of the offense charged-and, as bearing upon that question, he ought to be permitted to give evidence of his previous known good reputation." Woodworth v. Mills, 61 Wis. 44, 20 N.W. 728, 50 Am. Rep. 135; McIntosh v. Wales, 21 Wyo. 397, 134 P. 274, Ann. Cas. 1916C, 273; 38 C.J. 483.

The testimony disclosed that both plaintiff and defendant had resided in Red Lodge for a period of at least two years prior to the time this controversy arose, that they had been personally acquainted during that period of time and that the defendant was the proprietor of a moving picture theater which plaintiff frequently patronized. If, as testified to by the several witnesses, the plaintiff's general reputation for chastity and morality in that community was known to be good, it was for the jury to determine whether that general reputation was known to the defendant when he instituted the criminal proceedings against her.

In his endeavor to state facts in the complaint showing that plaintiff had committed a crime, the defendant went further than was necessary in making the assertion that she was a prostitute. Counsel for defendant argues that it is wholly immaterial in this case whether or not that charge was true. Had the charge been made on information and belief, counsel's argument might be well grounded, but it was not so made. Proof of the falsity of this positive assertion was competent as having some bearing upon the question of malice.

3. In discussing assignments of error 5 and 6, counsel for defendant urges in his brief that, by reducing the amount of damages which the jury awarded to plaintiff, the court of necessity found that the verdict of the jury was influenced by passion or prejudice, and therefore defendant was entitled as a matter of right to have his motion for a new trial sustained on that ground. A similar contention was made in the case of Bull v. Butte Electric Railway Co., 69 Mont. 529, 223 P. 514, and, in disposing of...