Rickman v. Safeway Stores

• Decision Date: 01 March 1951
• Docket Number: No. 8998,8998
• Citation: 227 P.2d 607,124 Mont. 451
• Parties: RICKMAN v. SAFEWAY STORES, Inc. et al.
• Court: Montana Supreme Court

Page 607

227 P.2d 607

124 Mont. 451

RICKMAN v. SAFEWAY STORES, Inc. et al.

No. 8998.

Supreme Court of Montana.

Submitted Oct. 14, 1950.

Decided Jan. 9, 1951.

Rehearing Denied March 1, 1951.

T. J. Davis, L. C. Myers, and George P. Sarsfield, Butte, for appellants.

Horace J. Dwyer, Anaconda, for respondent.

FREEBOURN, Justice.

This action is one for malicious prosecution wherein plaintiff, Alice Rickman, secured verdict and judgment against the defendant, Safeway Stores, Inc., a corporation. The action was dismissed as to the defendant, Daly Bank & Trust Company of Anaconda, a corporation, on plaintiff's motion at the close of plaintiff's case in chief.

Plaintiff, in her complaint alleged: That the defendants, on September 29, 1948, at the city of Anaconda, in Deer Lodge county, Montana, maliciously and without probable cause, procured and caused a criminal complaint to be filed in the justice court of East Anaconda township, charging plaintiff with the crime of 'uttering a fraudulent check,' resulting in the issuing of a warrant of arrest for plaintiff and her arrest thereunder by a constable, who took her before a justice of the peace; that the criminal complaint was then dismissed; that plaintiff suffered injury therefrom; and asked that plaintiff be awarded actual damages and damages by way of punishment and example.

General demurrers by all defendants were overruled and they answered separately.

Answers of the corporate defendants consisted of admissions of corporate capacity and denials of other allegations of the complaint.

Answer of defendant, Mary A. Milkovich: Admitted the filing of the criminal complaint and issuance of the warrant of arrest; denied other allegations of the complaint and alleged a separate defense wherein it was alleged: she was 'well and truly acquainted with Alice Rickman, the plaintiff,' who bought groceries from defendant, a clerk and employee of Safeway Stores; that plaintiff gave in payment for such groceries a check which was returned by the defendant bank after presentation for collection, accompanied by the statement there 'was no account in the bank in the name of Alice Rickman;' that believing such fact to be true defendant went to the county attorney's office and 'gave a full and complete statement of all the facts of the case' to and was advised by the county attorney 'to sign and file a complaint against the said Alice Rickman;' that 'the said complaint was prepared and signed by this defendant, Mary A. Milkovich;' that she had just cause and reasonable grounds for believing plaintiff guilty of the crime charged and acted in good faith and without malice.

The allegations of this defense were placed in issue by plaintiff's reply.

The trial jury's verdict was in plaintiff's favor and against the defendant, Safeway Stores, Inc., awarding plaintiff actual damages in the sum of $2,000 and damages by way of punishment and example in the sum of $1,000.

Motion for new trial was denied and this appeal followed.

Plaintiff's case in chief disclosed that plaintiff, as Alice Rickman, and Fred F. Hites (husband and wife at the time of trial, December 9, 1949) opened a joint account with the defendant bank on July 21, 1948. This account was in existence and had a cash balance of $274.68 on September 10, 1948. Money could be withdrawn from this account by check signed by Alice Rickman or Fred F. Hites.

On September 10, 1948, Alice Rickman delivered her check for $15, payable to Safeway Stores, to Mary A. Mikovich, Safeway Stores clerk, in payment for groceries. The check was good as shown by bank records.

For a year prior to the giving of the check Alice Rickman and Fred F. Hites had been customers of the Safeway Stores. They customarily visited the store on Mondays, where Hites would cash his weekly check and groceries would be purchased.

On October 1, 1948, plaintiff was arrested on a warrant issued in a judicial proceeding in a justice court. Such proceeding was instituted on September 28, 1948, by the filing of a criminal complaint signed by the Safeway Store employee, Mary A. Milkovich. The criminal complaint charged Alice Rickman with being guilty 'of the crime of 'uttering a fraudulent check," in that she did on September 10, 1948, 'with intent to defraud Safeway Stores, Inc., make, and draw and utter and deliver a check in the amount of Fifteen and no/100 ($15.00) Dollars on the Daly Bank and Trust Company of Anaconda, Anaconda, Montana, knowing at the time of such making, drawing, uttering and delivering that she had not sufficient funds in, or credit with such bank for the payment of such check, a misdemeanor * * *'

Taken before the justice of the peace plaintiff pleaded not guilty. Later the proceedings were dismissed and plaintiff released.

Evidence of damage to plaintiff from the institution of such justice court proceedings was introduced.

General demurrers of defendants, Safeway Stores, Inc., a corporation, and Mary A. Milkovich, to the complaint were properly overruled. The complaint stated a cause of action for, and plaintiff's evidence made a prima facie case of malicious prosecution.

The complaint alleged and the evidence tended to prove: (a) That a judicial proceeding was commenced and posecuted against plaintiff; (b) that the defendants, Safeway Stores, Inc., and Mary A. Milkovich, were responsible for instigating such proceeding; (c) that there was want of probable cause for defendants' action; (d) that defendants were actuated by malice; (e) that the proceedings terminated favorably to plaintiff; and (f) that plaintiff suffered damage. Stephens v. Conley, 48 Mont. 352, 138 P. 189; Johnson v. Horn, 86 Mont. 314, 283 P. 427; and Cornner v. Hamilton, 62 Mont. 239, 204 P. 489.

Plaintiff, innocent of any wrong, had been charged with the crime of passing a worthless check, although the check was good, with ample funds in the bank to cover it. No justification existed for filing such criminal charge. Probable cause, or such a state of facts and circumstances as would lead a careful and conscientious man to believe that plaintiff was guilty, was lacking.

'All the books agree that the plaintiff must prove both want of probable cause and malice, and that, where the absence of the former is established, the presence of the latter may be inferred. In other words, when the proof tends to show the absence of the former, a prima facie case is made for the jury. The burden then rests upon the defendant to rebut this prima facie case; and this he must do by any evidence tending to show the existence of probable cause and the want of malice on his part. Probable cause, however, is not to be confounded with actual guilt. The latter must always be established by proof beyond a reasonable doubt, while 'probable cause is only such a state of facts and circumstances as would lead a careful and conscientious man to believe that the plaintiff was guilty.' Barron v. Mason, 31 Vt. 189.' Martin v. Corscadden, 34 Mont. 308, 86 P. 33, 36; Grorud v. Lossl et al., 48 Mont. 274, 136 P. 1069; Saner v. Bowker, 69 Mont. 463, 222 P. 1056; Cornner v. Hamilton, supra; and Puutio v. Roman, 76 Mont. 105, 245 P. 523.

The filing of such criminal charge was a wrongful act which would not only vex and annoy plaintiff but did injure her. It was a malicious act. 'The words 'malice' and 'maliciously' import a wish to vex, annoy, or injure another person, or an intent to do a wrongful act, established either by proof or persumption of law.' R.C.M.1947, sec. 19-103, subd. 18.

The institution of such criminal prosecution was voluntary on the part of Mrs. Milkovich. She intended, by so doing, to vex, annoy and injure plaintiff, for the law presumes 'That a person intends the ordinary consequence of his voluntary act.' R.C.M.1947, sec. 93-1301-7, subd. 3.

Corporations, of necessity, act through individuals. Mary A. Milkovich, employee of Safeway Stores, wrote in the body of the check, witnessed plaintiff sign it approved and accepted it upon her own responsibility. She gave Safeway Store groceries and cash for the check. She knew plaintiff and could identify her. She could give the authorities all the facts pertaining to the check transaction. Mrs. Milkovich would be the principal witness against plaintiff in a criminal prosecution and was the logical person to sign the criminal complaint on behalf of Safeway Stores. Her action was the action of Safeway Stores.

The facts and circumstances made a case warranting the conclusion that the prosecution was commenced on behalf of Safeway Stores, through its employee and agent, Mrs. Milkovich, acting within the apparent scope of her authority.

The rule is laid down in Grorud v. Lossl, supra [48 Mont. 274, 136 P. 1071], where this court said: 'It is settled law that an action for malicious prosecution will lie against a corporation as well as against a natural person. (Citing cases.) By the great weight of authority it is also the rule that when an agent of a corporation in the course of the discharge of duties intrusted to him by it, and within the apparent scope of his authority, does an act from which a third person suffers injury, the corporation also is liable for the damages flowing therefrom, even though the agent may have failed in his duty to the principal, or may have disobeyed his instructions. (Citing cases.) If the act is prompted by fraudulent or malicious motives, the fraud or malice of the agent is imputable to the corporation.' See also, 54 C.J.S., Malicious Prosecution, § 64, p. 1032.

Defendants' evidence showed that the $15 check, signed by Alice Rickman, was returned to Safeway Stores by the bank, with a notation indicating she had no account in such bank.

At this time neither Mrs. Milkovich nor the store manager, Mr. Walters, appeared to believe plaintiff guilty of any wrong connected with the check. No complaint was then made to the county attorney or other authority. Three weeks elapsed before any action was...