Lead Opinion
This is аn action for malicious prosecution. It originates from a mental illness proceeding initiated by the appellee against the appellant. From a jury verdict in favor of the appellant, the trial court entered a judgment n. o. v. We reverse.
Appellant and appellee had known each other for several years on a social basis. When appellant and his wife incurred marital difficulties, appellant’s wife and family moved in with appellee and his family. Altercations occurred between appellant and appellee involving verbal abuse, threats and force. Several argumentative and threatening telephone conversations were also held between appellant and appellee and his family members.
Appellee, a practicing attorney, made an appointment tо see the deputy state’s attorney in charge of mental illness hearings to discuss bringing an action against appellant. Appellee disclosed to her the same facts and information he testified to at trial. After their meeting, the deputy state’s attorney prepared an application for emergency treatment alleging appellant to be mentally ill, which was signed by appel-lee under oath. Upon reсeipt of the appli- ■ cation, the chairman of the county board of mental illness issued an emergency warrant for detention. Appellant was detained and placed in custody. Several weeks latеr following a hearing the proceeding was dismissed.
Appellant then instituted suit against ap-pellee for malicious prosecution. The case came on regularly for trial. All issues were submitted to a jury after the сourt had properly instructed them as to the law. The jury returned a general verdict in favor of appellant and against appellee in the sum of $30,000. Appellee moved for judgment notwithstanding the verdict, which after a hearing, was granted, the trial court entering a judgment dismissing appellant’s complaint.
Appellant has raised the following issues on appeal: (1) The trial court erred in granting judgment notwithstanding the verdict because thе question of probable cause was properly an issue for the jury; (2) The trial court erred in not allowing appellant to amend his pleadings to conform to the proof by adding exemplary damages; and (3) The trial court erred in granting a conditional order for new trial, since the damages awarded, properly considered, are not excessive.
Appellee argues the trial court was correct in ruling the quеstion of probable cause was a question of law rather than fact, especially in this case where appellee also had the defense of advice of counsel and the protectiоn of SDCL 27A-9 2.
The question of probable cause is a mixed question of law and fact, and when such a defense is alleged, and evidence has been offered in relation thereto, its credibility is to be considered and determined by the jury, under proper instructions as to what facts, if they exist, constitute or fail to constitute probable cause; and when, as in this case, the defendant’s belief of the fаcts relied on by the plaintiff to prove a want of probable cause is essential, it is always a question of fact to be submitted to the jury for determination.
We followed with Krause v. Bishop,
Whether or not the facts, when so undisputed, constitute prоbable cause, orwhether or not, where the defendant acted upon the advice of counsel, after a full statement of the facts to him, and there is no evidence that the defendant acted maliciously or in bad faith, other than proof that the plaintiff was acquitted, the defendant is protected, are questions of law for the court.
In Malloy v. Chicago, M. & St. P. Ry. Co.,
From these early cases, two lines developed, one holding it a question of fact for the jury, Huntley v. Harberts,
Advice of counsel does not necessarily shield a person against a charge of malicious prosecution. Huntley v. Harberts, supra. To constitute a good defense, the advice of counsel must have been sought in good faith, from honest motives, and for good purposes, after a full and fair disсlosure of all facts within the accuser’s knowledge and information, and the advice received must have been followed in good faith. Jackson v. Bell, supra; Kunz v. Johnson, supra. If the facts are undisputed, it is a question of law, Kunz v. Johnson, supra, but when the facts аre in dispute, it is a jury question. Wren v. Rehfeld, supra.
Likewise, immunity granted by statute is not absolute. A malicious prosecution is one that is begun in malice, without probable cause to believe it can succeed, and which finally ends in failure. Kunz v. Johnson, supra. As we said in Krause v. Bishop, supra, the law must be enforced; human agencies must be employed for that purpose; and the law wisely protects all persons who act in good faith and upon reasonable presumptions. The question whether оr not a person acted maliciously in starting a prosecution and causing the arrest of another is a question of fact to be determined by the jury. Braathen v. Weller, supra.
Both parties agree there were material conflicts in thе facts presented. The trial court was correct in the first instance in submitting the questions of probable cause and the defenses of advice of counsel and protection of statute to the jury for their determination after properly instructing them. No useful purposes would be served by our commenting on or setting forth the evidence, which we think is sufficient to sustain the jury’s verdict.
After the parties had submitted their evidence and before settlement of the instructions, appellant moved to amend his complaint to conform to the evidence by adding to his prayer for relief a claim for
The trial court, after ordering the judgment notwithstanding the verdict under the provisions of SDCL 15-6-J)(c), further ordеred that if the judgment n. o. v. were thereafter vacated or reversed, a new trial would be granted on the grounds that the damages were excessive and appeared to have been given under the influence of passion or prejudice.
A person who has been prosecuted maliciously and without probable cause may recover for the expense to which he has been put as well as for the injury to his fеelings or personal mortification. Jackson v. Bell, supra. The instructions of the court allowed the jury to award damages based upon appellant’s (1) humiliation, embarrassment and mental anguish; and (2) expenses of defending himself аgainst the mental illness petition. The evidence, taken in the light most favorable to appellant, shows actual out-of-pocket damages in excess of $4,000. Appellant was also unable to sleep; he was unable to concentrate on his work, which suffered; and he was extremely distraught. There being no accurate means of measuring the detriment suffered by the victim in actions of this character, the law from necessity leaves the assessment of damages to the unbiased judgment and common sense of the jury, according it broad discretion. Mental suffering resulting from such , a wrongful act and from the disgrace attending it is properly the subjeсt of compensatory damages, which are largely within the discretion of the jury under proper instruction by the court. This Court will seldom interfere with a'verdict in such cases unless all of the circumstances demonstrate that the jury acted under some improper influence, bias, passion, or prejudice. Eller v. Lord,
The judgment and order appealed from are reversed, and the trial court is directed to reinstate the jury verdict.
Notes
. Repealed by 1977 S.D. Sess. Laws ch. 189, § 126.
. This motiоn was made under the provisions of SDCL 15-6- 15(b).
Dissenting Opinion
(dissenting).
I would affirm the trial court, for I think that this is one of those cases in which the undisputed facts establish the existence of probable cause to initiate the legal proceedings. Thе fact that the mental illness board did not find that the allegations in the petition had been proved by clear and convincing evidence should not be construed as evidence of lack of probable cause. Wadlington v. Coyne,