136 N.W.2d 43 | Mich. Ct. App. | 1965
HARRIS
v.
FEDERAL ASPHALT PRODUCTS, INC.
Michigan Court of Appeals.
Abel J. Selburn and Frederick M. Goldsmith, for plaintiff.
Grossman & Grossman (George Stone, of counsel), for defendant.
PER CURIAM:
Plaintiff filed complaint for malicious prosecution. Defendant moved to dismiss because the complaint failed to state a cause of action. Plaintiff was granted time to file an amended complaint. This was done and the motion was renewed as a motion for summary judgment, pursuant to GCR 1963, 117.2(1). This motion was granted. Plaintiff moved for rehearing; it was denied and plaintiff appeals from this denial.
The Supreme Court has stated clearly the essential elements of this type of action:
"In actions for malicious prosecution, three propositions must be established: (1) The fact of the alleged prosecution and that it has come to a legal termination in plaintiff's favor; (2) that the defendant *320 had no probable cause; (3) that he acted from malicious motives. Thomas v. Bush, 200 Mich. 224. It is a recognized rule that malice may be inferred from want of probable cause, but this is not a rule that works both ways. Want of probable cause may not be inferred from malice." Weiden v. Weiden (1929), 246 Mich. 347, 352; Drobczyk v. Great Lakes Steel Corp. (1962), 367 Mich. 318, 323.
Paragraph 16 of the amended complaint satisfies the first element mentioned in the above quotation, but nowhere in the amended complaint is there a showing that defendant had no probable cause for bringing its prior action against plaintiff, nor is there any showing of malice. Paragraphs 11, 15, and 17 of the amended complaint allege the prior action was brought without probable cause and with malice, but without factual allegations to support them, these are conclusions and are insufficient. GCR 1963, 111.1(1).
The trial court is affirmed, with costs to appellee.
QUINN, P.J., and FITZGERALD and T.G. KAVANAGH, JJ., concurred.
