Smith Development Corp. v. Bilow Enterprises, Inc.

• Decision Date: 15 August 1973
• Docket Number: Nos. 1375-A,s. 1375-A
• Citation: Smith Development Corp. v. Bilow Enterprises, Inc., 112 R.I. 203, 308 A.2d 477 (R.I. 1973)
• Parties: SMITH DEVELOPMENT CORPORATION v. BILOW ENTERPRISES, INC., et al. McDONALD'S CORPORATION v. BILOW ENTERPRISES, INC., et al. ppeal, 1376-Appeal.
• Court: Rhode Island Supreme Court

Page 477

308 A.2d 477

112 R.I. 203

SMITH DEVELOPMENT CORPORATION v.BILOW ENTERPRISES, INC., et al.

McDONALD'S CORPORATION v.BILOW ENTERPRISES, INC., et al.

Nos. 1375-Appeal, 1376-Appeal.

Supreme Court of Rhode Island.

Aug. 15, 1973.

Moore, Virgadamo, Boyle & Lynch, Francis J. Boyle, Newport, for plaintiffs.

Arcaro, Belilove & Kolodney, Kenneth M. Beaver, Providence, for defendants.

OPINION

KELLEHER, Justice.

These cases were consolidated for argument here just as they were consolidated for a jury trial in the Superior Court.The plaintiffs are Smith Development Corporation and McDonald's Corporation.Smith Development is a Rhhode Island corporation and the owner of a parcel of land located on the easterly side of West Main Road in Middletown.McDonald's is a Delaware corporation and franchises the operation of a nationwide chain of drivein restaurants.The defendants are Bilow Enterprises, Inc., a Rhode Island corporation, and its treasurer and a holder of a substantial amount of the corporation's stock, Louis Bilow.The corporate defendant holds a franchise for 'Carroll's Hamburgers.'It operates a drive-in restaurant on leased land in Middletown on West Main Road just about a mile away from the Smith Development parcel.Hereafter, we shall from time to time refer to the corporate plaintiffs as 'Smith' and 'McDonald's' respectively, the corporate defendant as 'Carroll's' and the individual defendant as 'Bilow.'

After an extended trial, the jury brought back verdicts for Smith against Carroll's in the amount of $26,500 and against Bilow for $15,000.McDonald's was awarded nominal damages in its suits.The trial justice denied McDonald's motion for a new trial, affirmed the $26,500 award and ordered an additur of $11,500 in Smith's suit against Bilow.Carroll's, Bilow and McDonald's have appealed.

On September 5, 1962plaintiffs entered into a lease agreement with McDonald's whereby Smith would erect on a portion of its property a drive-in restaurant which would be tailored to the plans and specifications provided by McDonald's.In return, Smith would receive an annual rental of $9,000 for a period of 20 years with the lease calling for two renewals of five years each.The lease was conditioned upon Smith's obtaining a $45,000 construction mortgage.The Rhode Island Hospital Trust Company had conditionally approved the mortgage upon Smith's obtaining approval of the Middletown Planning Board for the proposed endeavor.The bank's counsel was of the opinion tht since the lease involved a subdivision of Smith's real estate, approval of the planning board was a necessity.

Smith submitted the proposed subdivision to the planning board.The board considered the plat at a series of meetings held beginning in December, 1962.At one point, the board gave its preliminary approval.However, when the plans came before the board of August 12, 1963 for final approval, there was a public hearing at which abutting property owners appeared with counsel and expressed their objections.The objectors voiced concern for the safety of the children who attended a nearby elementary school.On August 26, a majority of the planning board voted to disapprove the plat.Most of those voting in the negative rested their decision on the 'safety factor.'

Smith took an appeal to the Middletown Planning Board of Review.Another public hearing was held.There was another split vote.This time the majority voted to approve the proposed subdivision and permit its recordation.The board gave its approval on October 24, 1963.The abutters then filed a bill of complaint under the provisions of G.L.1956, § 45-23-20, which authorizes the Superior Court to review decisions of plainning boards of review.A justice of that court issued an ex parte restraining order prohibiting the recording of Smith's plat.After hearings were held in January and February, 1965, the trial justice dismissed the bill of complaint on the basis that the abutters have failed to prove that the recording of the plat would adversely affect the value or use of their land.On February 23, 1966, we affirmed the dismissal.¹

Within six months thereafter, Smith and McDonald's initiated this litigation.Since there is error in the instructions given to the jury which is prejudicial to defendants and because there is an erroneous exclusion of evidence in the suit brought by McDonald's, we shall forego any extensive review of the evidence.

The record shows that legal expenses incurred by the abutters in their effort to keep McDonald's Golden Arches out of Middletown were paid by the corporate defendant.The firm that represented the abutters before the planning board, the board of review, the Superior Court and this court owns stock in the corporate defendant.One of the members of the firm is Bilow's first cousin, and the secretary of Carroll's.

In their complaint, plaintiffs sought damages on three different grounds-(1) tortious interference with their contractual relationship; (2) maintenance; and (3) abuse of process.

The plaintiffs submitted to the trial justice 39 requests to charge.The defendants presented 28 requests.The trial justice began his charge by giving the 'boiler plate.'He elucidated on such routine matters as the jury's duty to apply the law as given to them by the court to the facts as they might find them, their right to draw inferences, the burden of proof, and the necessity for a unanimous and impartial verdict.The trial justice had now reached the point in his charge where he was to discuss the law applicable to the issues.At this juncture, he then proceeded to give an almost verbatim reading of 34 of plaintiffs' 39 requests, immediately followed a recitation of 20 of defendants' 28 requests.When the reading was finished, the jury was dispatched to the jury room to begin their deliberations.

Instructing the jury is one of the most important functions of a trial court.The primary purpose of instructing a jury is to assist the jurors in the discharge of their responsibility for finding the facts in issue and then in applying the facts found to the applicable rules of law to enable them to reach a proper verdict.Pfeiffer v. Salas, Mass., 271 N.E.2d 750(1971).It is the trial justice's obligation to instruct the jury with preciseness and clarity as to the rules of law that are applicable to the issues raised at trial so that the jury is neither misled nor confused.Anter v. Ambeault, 104 R.I. 496, 245 A.2d 137(1968);Macaruso v. Massart, 96 R.I. 168, 190 A.2d 14(1963).Instructions should be attuned to the ears and understanding of the jurors.They are not attorneys but are persons who are selected at random from the community and from all walks of life.They possess varying degrees of academic achievement.The language used in instructing the jury must be appropriately chosen to be helpful to such a group.Pfeiffer v. Salas, supra.Furthermore, even though a trial justice is not required to sum up the evidence, he must, if he is to assist the jury, do something more than give a bare statement of legal principles.Rather, he should indicate to the jury how these principles apply to the facts claimed to have been proven.Vita v. McLaughlin, 158 Conn. 75, 255 A.2d 848(1969).

There were only two issues that could properly be determined by the jury.As noted earlier, the complaints in these actions listed three counts-tortious interference with contractual relations, maintenance, and abuse of process.No instructions were given relative to the maintenance count.The instructions did, however, embrace two torts not in the case, conspiracy and malicious prosecutin.At no time did the trial justice, in his reading of the 34 rules of law given him by plaintiffs, specifically allude to the tort of wrongful interference with contractual rights, define it, and then associate the various rules of law he was reading to that particular tort. the same was true of the count concerning abuse of process.

Over a quarter of a century ago this court said that an intentional and malicious interference with a contractual relationship is actionable.Local Dairymen's Cooperative Ass'n v. Potvin, 54 R.I. 430, 173 A. 535(1934).While the court in Potvin made no effort to define the term 'malicious,' it is now well established that the terms 'malicious' and 'malice' do not mean that proof is required of a defendant's malevolence, spite, or ill will towards the contracting party or parties, but rather that the words 'malicious' and 'malice' signify an unjustified interference by one with the contractual relationship of others.Prosser, Torts § 129 at 927-28(4th ed. 1971).

At two points in his charge the trial justice correctly defined the term 'malice' as being synonymous with 'unjustified' but then went on to read, during various portions of the charge, the following statements of law:

'Ill will or malice on the part of the actor toward the person injured is not an essential condition of liability for interfering with another's business relationship.

'* * *

'Malice or ill will is not essential to liability for damages caused by the wrongful initiation of legal proceedings.

'* * * 'If you find either or both defendants guilty of interfering with the contract between McDonald's Corporation and Smith Development Corporation, then I charge you to return a verdict for plaintiffs to compensate them for all of the consequences growing out of defendants' acts.'

This last statement marked the conclusion of plaintiffs' requests so far as they were applicable to the tortious interference count.

The reading was not presented to a meeting of the bar association.It was given to a group of laymen.The question is not how the instructions read.It is how they sound.We are cognizant of the rule that a charge must be considered in its entirety, but we see no need to put in writing all the rules given to the jury.The charge sounds contradictory.At several points...