Reece v. Pierce Flooring, 80-463

• Citation: 634 P.2d 640,38 St.Rep. 1655,194 Mont. 91
• Decision Date: 13 October 1981
• Docket Number: No. 80-463,80-463
• Parties: Michael L. REECE, Plaintiff and Appellant, v. PIERCE FLOORING, a Montana Corporation, Defendant and Respondent.
• Court: Montana Supreme Court

Page 640

634 P.2d 640

194 Mont. 91

Michael L. REECE, Plaintiff and Appellant, v. PIERCE FLOORING, a Montana Corporation, Defendant and Respondent.

No. 80-463.

Supreme Court of Montana.

Submitted on Briefs June 17, 1981.

Decided Oct. 13, 1981.

Charles E. Snyder, Billings, for plaintiff and appellant.

Crowley, Haughey, Hanson, Toole & Dietrich, Billings, for defendant and respondent.

HASWELL, Chief Justice.

In an action for malicious prosecution, the District Court of Yellowstone County granted a directed verdict in favor of defendant Pierce Flooring at the conclusion of plaintiff's case-in-chief. Plaintiff Michael Reece appeals.

Reece, a building contractor working under the business name of M & R Enterprises, had been a customer of Pierce Flooring since 1972. On August 16, 1977, Reece owed Pierce Flooring $1,201.20 for carpet installed at 807 Saddle Drive and $1,372.80 for carpeting installed at 134 Lantana Drive. Reece owed Pierce Flooring a total of $2,744.56 on the two accounts, including interest.

Before Reece left for vacation on August 16, 1977, he wrote a check to Pierce Flooring and asked his mother to deliver it for him. Intending to pay only the amount owed on the Saddle Drive account but not recalling that particular amount, he wrote out a blank check to Pierce Flooring, noting as a memo "807 Saddle Drive." He then asked his mother to find out the amount owed on the Saddle Drive account, fill in that amount on the check, and give it to Pierce Flooring.

When Reece's mother went to Pierce Flooring, she talked to an employee at the front desk and asked how much was owed on the Saddle Drive account. According to the testimony of Reece's mother, she was then told that she would have to pay the entire amount for both the Saddle Drive and the Lantana Drive accounts or else Pierce Flooring would place liens on these properties. Concerned about the possible liens, Reece's mother made the check out for $2,744.56, the entire amount owed on both accounts to Pierce Flooring rather than just the amount owed on the Saddle Drive account.

The check was returned for insufficient funds. Reece's mother told her son about the circumstances surrounding her delivery of the check when he returned from vacation in early September. He knew that the check had not cleared when he received his bank statement in mid-September. From mid-September to his arrest on November 27, 1977, Reece made no further contact with Pierce flooring and took no action to pay his account.

On September 12, 1977, Pierce Flooring filed liens on both the Saddle Drive and the Lantana Drive properties. In early October the check was run through a second time and returned again for sufficient funds. Pierce Flooring made several attempts to contact Reece but failed. Reece's business phone was disconnected in mid-October and his home phone was unlisted. Pierce Flooring then mailed to Reece's home address a certified letter notifying Reece that criminal prosecution may be initiated by Pierce Flooring if the check was not made good within five days, as provided in section 45-6-316, MCA. The registered letter was returned to Pierce Flooring marked "refused." Reece testified that he had not received the registered letter since he did not receive his mail at his house address but at his post office box.

On October 25, Ron Pierce, general manager of Pierce Flooring, signed an "Investigative Form for Bad Checks and Forgeries" which was the standard form used by the Yellowstone County attorney's office to decide whether or not to prosecute a bad check charge. One question asked whether the check was given in payment for an existing debt, to which Pierce Flooring replied "yes." The deputy county attorney who subsequently decided to prosecute the case, testified at the trial that he would have rejected and probably did reject the case at that time because of the affirmative answer to the existing debt question.

Nevertheless, on November 1, a complaint was filed in the Justice Court of Yellowstone County on the charge of issuing a bad check (felony) in that Michael Reece "with the purpose to secure property to wit: lien waivers on real estate and fixtures" issued the check. The record is unclear as to how the deputy county attorney came to the belief that lien waivers had been given in exchange for full payment. The deputy county attorney testified that such information could have come from either law enforcement personnel or from an employee of Pierce Flooring, but he could not remember why he thought lien waivers had been given to Reece.

On Sunday, November 27, 1977, Reece was arrested in his home. He was booked and kept in the Yellowstone County jail until he arranged bail of $2,800. On December 1, 1977, the complaint was dismissed by the deputy county attorney on the grounds that new evidence indicated that it was not in the interest of justice to prosecute.

Thereafter Reece filed a civil action for malicious prosecution against Pierce Flooring. It came on for trial on October 6, 1980. At the conclusion of plaintiff's case-in-chief the District Court granted Pierce Flooring's motion for a directed verdict as follows:

"THE COURT: All right. Well, gentlemen, on the authority that's been cited to me, that the question of lack of probable cause is a question of law to be determined by the Court and that specifically is Wendel vs. Metropolitan Life Insurance Company, 83 Montana 252 I think the Court is compelled to grant the motion and dismiss the complaint in this cause, and it is so ordered."

Plaintiff Reece appeals presenting essentially two issues for review:

(1) Is probable cause a question of law to be determined by the Court?

(2) If not, is the evidence sufficient to create a jury issue on probable cause?

In a civil action for malicious prosecution, the plaintiff must allege and prove (1) that a judicial proceeding was commenced and prosecuted against him, (2) that the defendant was responsible for instigating, prosecuting or continuing such proceeding, (3) that there was lack of probable cause for defendant's acts, (4) that defendant was actuated by malice, (5) that the judicial proceeding terminated favorably for plaintiff, and (6) that plaintiff suffered damage and the amount thereof. McGuire v. Armitage (1979), Mont., 603 P.2d 253, 36 St.Rep. 2142; Stephens v. Conley (1914), 48 Mont. 352, 138 P. 189. The issues in this appeal concern the third element listed above.

In this case the District Court ruled that lack of probable cause was a question of law to be determined by the court on the basis of our 1928 opinion in Wendel v. Metropolitan Life Insurance Co., 83 Mont. 252, 272 P. 245. This was error.

We acknowledge the existence of an isolated general statement in Wendel to that effect:

"Therefore, in actions for malicious prosecutions, the real controversy is, generally, upon the question of malice and want of probable cause. The burden of proving these essential elements rests upon the plaintiff, and whether there was a want of probable cause is purely a question of law."

Wendel involved a malicious prosecution action by a discharged employee against his former employer following dismissal of a larceny prosecution instigated by his former employer. A jury verdict in favor of the discharged employee was reversed on appeal on the ground that the uncontroverted facts established probable cause as a matter of law. In that context where the facts of the larceny were undisputed and the criminal charge was dismissed for failure of the state to diligently prosecute the same, the question of probable cause became a question of law for the court. We expressly disapprove the application of this rule generally to actions for malicious prosecution holding the rule properly applicable only where there is no conflict in the evidence on the issue of probable cause and such uncontroverted evidence admits of only one conclusion on that issue.

The cases of Orser v. State of Montana (1978), 178 Mont. 126, 582 P.2d 1227, and 3-D Lumber Co. v. Belgrade State Bank (1971), 157 Mont. 481, 487 P.2d 1136, are similar to Wendel. In both cases the evidence relating to the presence or absence of probable cause was undisputed and admitted of only one conclusion. Under such circumstances the issue of probable cause became a question of law for the court. Any application of that principle to cases involving conflicting evidence on the issue of probable cause is expressly disapproved.

Puutio v. Roman (1926), 76 Mont. 105, 245 P. 523 expresses the correct rule in malicious prosecution cases. There this Court reversed a directed verdict for the defendant setting forth the applicable law in this language:

"It is settled in this jurisdiction, and elsewhere generally, that a cause should never be withdrawn from the 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. A motion for a directed verdict in favor of the defendant is in effect a demurrer to the plaintiff's evidence; it admits as true all material facts in evidence which tend to establish plaintiff's cause of action, whether such facts be produced by the plaintiff or the defendant. Such facts, with every legitimate inference that may be drawn from them, are to be considered in the light most favorable to the plaintiff. 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."

(Citations omitted.)

The distinction between the judge and jury function was recently succinctly expressed by the Georgia Court of Appeals in this manner:

"Want of probable cause is an essential element of a malicious prosecution cause of action. Ordinarily, the existence of probable cause is a question of fact for...