Zitkov v. Zaleski
| Decision Date | 22 April 1925 |
| Citation | 128 A. 779,102 Conn. 439 |
| Court | Connecticut Supreme Court |
| Parties | ZITKOV v. ZALESKI. |
Appeal from Court of Common Pleas, Hartford County; Edwin C Dickenson, Judge.
Action for malicious prosecution by Roman Zitkov against Alex Zaleski. Judgment for plaintiff for $200 damages, and defendant appeals. No error.
The complaint alleges that in January, 1924, the defendant stated to a grand juror of the town of Windsor that the plaintiff had committed the crime of theft, and procured an information for theft by the plaintiff of building materials belonging to the defendant; that the plaintiff was arrested on this charge, tried before a justice of the peace before whom defendant appeared and charged the plaintiff with having committed the crime whereof he was accused, and that plaintiff was acquitted. These facts are admitted in the answer. The complaint further alleges that the charge was in fact false, was made without probable cause and from motives of malice; also that by reason of this prosecution the plaintiff had been injured in reputation and subjected to an expense of $50 in making defense. These latter facts are put in issue by the answer. The trial court found that plaintiff a carpenter, was employed by defendant to do the finishing work upon a house in course of erection by the latter, using materials furnished him by defendant; that Peter Gorski assisted plaintiff in the work. When Zitkov and Gorski entered upon the defendant's property to complete the house, there were building materials lying about, consisting of pieces of lumber and planks and finishing materials of various sizes and dimensions left over by the previous parties who had been constructing the house, the property of defendant. The defendant furnished the materials necessary for finishing the house, with the exception of a small amount of material furnished by the plaintiff for which he was paid by the defendant. The plaintiff and Gorski furnished the carpentry work in question for the defendant. The plaintiff was building himself another house in Windsor in the neighborhood of the defendant's house at about the time he was working upon the defendant's house. The plaintiff's bill for this work amounted to $678.60. The defendant claimed that the bill for the work should not have been over $200, and refused to pay it.
The plaintiff then caused to be filed in the Windsor land records a mechanic's lien on the property belonging to the defendant, on which the plaintiff did the work, in the amount of $678.60, which lien was dated December 3, 1923. The filing of this lien prevented the defendant from procuring a mortgage on the property until the lien was released of record. This fact was the cause of bitter feeling on the part of the defendant towards the plaintiff. The defendant finally agreed to pay the plaintiff $600, and the plaintiff then released the lien, thus enabling defendant to procure a first mortgage. Two planks 2x9x14 furnished by the plaintiff and used by the plaintiff as staging on the job remained on the defendant's property after the work was completed. After the defendant obtained his mortgage, he requested Gorski to notify Zitkov to remove the two planks, which message Gorski delivered to the plaintiff. The plaintiff and Gorski removed the planks.
Anna Marcniak and Anthony Stankevich, two of the witnesses for the defendant, informed the defendant that they had seen the plaintiff and Gorski removing two planks. The planks these witnesses saw removed were the two planks belonging to the plaintiff. Azzian, painting the defendant's house after the plaintiff had completed the finishing work, reported to the defendant that he saw the plaintiff and Gorski remove finishing lumber. The plaintiff and Gorski had at about this time removed certain sawhorses, mitre boxes, and tools belonging to them. The plaintiff removed no material belonging to the defendant. The defendant, although he had notified the plaintiff to remove the planks, made no inquiries of the plaintiff to ascertain whether or not the material which was reported to him to have been removed by plaintiff belonged to the plaintiff.
The defendant complained to the grand juror that the plaintiff and Gorski had stolen building materials belonging to him. The grand juror caused a warrant to be issued for the arrest of the plaintiff and Gorski. The warrant was served on the plaintiff at his house on a Sunday when he was having a small party which was attended by his friends. The plaintiff's reputation in the town was that of an honest man. The plaintiff was obliged to expend the sum of $65 for legal services in defense of the charges. The plaintiff was tried upon a charge of theft and acquitted.
The court reached the following conclusions: That the defendant acted without probable cause and with malice in bringing his complaint against the plaintiff. That the plaintiff bore the reputation of an honest man up to the time of the prosecution, and his arrest caused him great humiliation. That the plaintiff should recover $200 damages from the defendant.
Defendant also asked for certain corrections of the finding, which were refused and will be considered in the opinion, which also contains further facts. The defendant's reasons of appeal are that the court erred in holding that the facts found justify the finding of want of probable cause on the part of defendant in making his complaint to the grand juror, and also in finding malice, and also in finding damages to the amount of $200. Another alleged error is that there was no evidence to show that the plaintiff was injured in business or reputation by the charges preferred. It is also assigned as error that the court wrongly drew a certain conclusion in its memorandum of decision from the evidence. The memorandum was not made part of the finding. The remaining errors assigned relate to the refusal of the trial court to rectify the finding.
George Schwolsky and Frederick J. Rundbaken, both of Hartford, for appellant.
Charles Sudarsky and George M. Hyman, both of Hartford, for appellee.
KEELER, J. (after stating the facts as above).
Turning first to the errors assigned upon the trial court's refusal to correct the finding, we find that the finding, so far as it states facts found as distinguished from conclusions, contains 28 paragraphs, and of these the defendant moved to strike out 12, which latter are those most concerned with the vital issues in the case. Defendant asks for the addition of 10 paragraphs or parts of paragraphs. If the motion were granted in full, the result would be a nearly complete reproduction of the defendant's draft finding, and of course would not justify the conclusions of the court. None of the findings sought to be cut out were found without evidence; they were found upon conflicting evidence. The additions sought were none of them admitted and undisputed. With...
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