Huntley v. Harberts
264 N.W.2d 497
S.D.
1978
Check Treatment

*1 recognizes that there are situations in required; no defense will be in

which HUNTLEY, Lawrence Plaintiff true though situations this is even a some Respondent, summary judgment motion for has been supported by affidavits or other eviden- 56(e) tiary Rule states that material. Ralph HARBERTS, W. Defendant required only is if the defense motion for Appellant. summary judgment “supported pro- is No. 11981. in this rule” and that if vided even party fails to submit opposing counter-ev- Supreme Court of South Dakota. idence, summary be judgment shall en- only appropriate.” tered “if Further- Argued Nov. more, Advisory Committee stated in Decided April 6, 1978. its Note: “Where the evidentiary matter support in of the motion does not estab- issue, genuine

lish the absence of a sum-

mary judgment must be denied even if no

opposing evidentiary present- matter is Miller, Wright

ed.” Federal Practice Procedure, (footnotes 716-17

omitted). judgment will summary

A motion for be if, taking after

granted view the party

evidence most favorable summary whom the

against judgment is Keller, S.D.,

sought, Janklow (1976), appears genuine it there is no

issue as to material fact summary

party seeking judgment is Poppenga

entitled to it as a matter of law. Cramer, S.D., We

conclude that Collins did not meet its bur- demonstrating no

den issue fact concerning performance

existed of all precedent

conditions to its for recovery ex- haul, summary judgment

tra on count

one its should not have been We, therefore,

granted. reverse and re-

mand for on the merits. trial

All the Justices concur. present evidentiary Hughes-John- raising genuine in In offer decision case. material is- moving party son the affidavit filed in sue of fact for trial. contrast the actions support judgment summary moving party Hughes-Johnson, motion of his Collins prima was sufficient in form and substance to estab- failed to establish a facie which prima required lish facie case in accordance would have Board offer eviden- allegations tiary complaint, placed raising genuine his material issue of fact for party opposing burden on the the motion to trial. *2 Brady,

Gerald L. Reade of Kabeiseman & Reade, Yankton, plaintiff respon- for dent. Bierle, Doyle Doyle E. & Yank-

James ton, for defendant BOTTUM, Judge. Circuit appeal judgment This is an from a awarding plaintiff respondent, Huntley, in an action for malicious The defendant Harberts, and appellant, appeals from the judgment pursuant jury ver- entered the trial dict and court’s denial both his a new motion for trial and his motion for judgment notwithstanding the verdict. cerning number of assault and battery to appeal. for his Al- as foundations errors which he testified at the subsequent trial adequate we find that there was though at- jury from which torney advised Harberts that under the plaintiff jury could conclude facts which Harberts had related to cause of action for mali- *3 sustained a had including allegation Harberts’ that Huntley against appellant by the prosecution cious had struck him with a hose, rubber the evidence, the damages of the preponderance crime of assault and battery had technically sufficiently supported by awarded were not been committed. at trial and the presented the evidence The next day Harberts went to the cannot be allowed to stand. award Attorney, Mary State’s Cody, Dell and told her the same set of alleged facts which he RELEVANT FACTS had recited attorney, includ- from an incident which This case arises ing the fact that Ray Medema had wit- Although the occurred on June the nessed incident. After discussing the the events which took originates case from incident with the State’s Attorney, Har- the encounter between place day, on that berts testified that signed he a blank com- on June 23rd was not Huntley and Harberts plaint which was later filled in with the was evidence their first. There details of the assault and battery. jury the could infer that Har- from which The Attorney State’s investigate did not had been a difficult customer for berts the incident talking Ray Medema 23rd, time. On June Harberts went some prior to filing charges. It should be which pick up Huntley a boat motor had noted that on night of the incident in repaired Huntley’s repair shop, for him at question, Harberts went to see Medema and garage Huntley’s behind located in Medema told Harberts that although he house. While most of the work was cover- observed Huntley’s hostility toward Har- by warranty, there was a bill for ed $6.24 berts, he neither Huntley heard threaten outstanding. Huntley indicated that before him nor saw Huntley strike him. home, Harberts could take the motor Har- pay would have to bill of $6.24. Huntley pursuant was arrested surprised by testified that he was this berts assault battery complaint and was re- Huntley mandate but surmised that was personal leased on a recognizance bond. serious. Notice of the assault battery charge appeared in the Yankton paper. prelimi- A point, agreement this about what At nary hearing was at Huntley, held which Huntley transpired between and Harberts Harberts and Medema all testified. Robert Huntley testified that terminates. Har- Ulrich, Magistrate, C. Law dismissed the threatening towards him in a berts came for lack of cause. Huntley dropped manner and that with which he had work- screw driver been Huntley then began this action for mali- Huntley ing picked up a rubber hose. jury cious At a trial he recov- that he never struck Harberts and testified $20,260.00. $5,260.00 ered The amount of threatened to strike him. The testi- never was awarded as damages, including actual Medema, mony a witness to the which Huntley paid in fees $260.00 incident, corroborates the facts as related to defend himself on the assault and bat- hand, by Huntley. the other Harberts On tery charge. The amount of was Huntley both threatened to testified exemplary damages. awarded as him hit him with the rubber harm and did hose. ISSUES PRESENTED incident,

Following the June 23rd Har- The private attorney appellant following went to see a has raised the berts appeal: related to him the same set of facts con- issues on First, alleges that the defendant appellant admitted in his ISSUE ONE: by prepon- prove answer, failed respondent signed by was commencement evidence the derance proceedings had commenced the criminal proceeding. the criminal or continuation Therefore, question. respondent proving relieved of the burden of that ele alleges that appellant TWO: The ment the offense at trial. See SDCL by prepon- failed 6—8(b) Fremont, and Mattoon v. E. & M. causation legal derance of the 15 — Co., V. R. 60 N.W. proceeding the criminal respondent. against the if Even Harberts had not made this alleges THREE: answer, appellant’s argu admission in his prove by failed to Where, here, prevail. ment cannot evidence the absence preponderance deficiency issue of an technical proceed- for the crimin'al probable cause *4 during the was not raised the ing. the original proceedings, course of criminal contends appellant The FOUR: ISSUE respondent the was arrested on the assault prove by to a failed that the battery charge and and submitted to the presence the of the evidence preponderance jurisdiction charge of the court and the of malice. merits, the appellant resolved on its cannot alleges that The FIVE: ISSUE question validity now the of the criminal error committed reversible process which he set into motion. the See refusing and by giving certain instructions 786, 8, cases cited at 36 A.L.R.2d 809 by the proposed give several instructions supplement the thereto. objects to the The SIX: ISSUE TWO jury awarded to the re- which the amount (1) damages on the basis spondent in by the appel The second issue raised evidence in the record is insufficient there sufficiency respon lant involves (2) the award was justify the award proof dent’s of the second element of a prejudice on the passion result of prosecution, action for malicious cause of jury. part of the legal proceed causation of the criminal against Huntley. ap Harberts ing by ONE pellant’s argument basic is State’s 417, 81 McIntyre Meyer, S.D. attorney was the cause for the legal assault (1965), this Court reiterated battery prosecution and that her failure mali of a cause of action for the elements proceed to interview Medema before set forth which had been prosecution cious charge conclusively ing with demon 577, Johnson, 74 in Kunz S.D. legal was not strates that Harberts Da (1953) and numerous earlier South 116 prosecution. cause for the of these six elements kota cases. The first Harberts’ admission in his again, Once of an or continuation is the commencement answer, “procured the arrest of judicial proceeding civil original criminal or Huntley” complaint,” “swore to the by respondent. relieved the of the burden of attack on the appellant’s crux of the legal causation issue. See proof on sign- element is that the of this first proof I, supra. under Issue discussion complaint in blank and the lack ing of the Furthermore, attack, through ap- this required by oath SDCL of verification arguing the defense which he pellant is 23-21-5 render 23-19-2 and SDCL trial, e., full and at i. that his forwarded com- proceedings improperly criminal a pertinent fair disclosure of all the facts to sup- therefore insufficient menced and attorney Attorney and the private State’s malicious an action for port malicious the cause of action for argument. in this defeats We find no merit

501 prosecution. Whether or not a defendant finding a of malice in an action for mali- prosecution in an action for cious We agree with the rea- full, complete fair and disclosure of made soning expressed by the California Supreme good material facts in faith to a all the Court in Raboff, Albertson v. 375, Cal.2d Attorney 383, and/or State’s 405, 295 P.2d (1956): provides him with a defense to an required The malice in an action for mali- prosecution ques- for malicious is a action prosecution cious is not limited to actual jury. tion of fact for the e. Wren v. hostility or ill will toward plaintiff but Rehfeld, (1916), 157 N.W. 323 exists when the proceedings are institut- Johnson, Larsen v. 47 S.D. 197 N.W. ed primarily for an improper purpose. Weller, (1924) and Braathen v. 44 S.D. Singleton See also v. Singleton, 68 Cal. (1921). 182 N.W. 637 As this Court App.2d 157 P.2d (1945), Griswold v. Braathen, supra: “Whether or stated Griswold, 143 Cal. 77 P. 672 (1904) and to counsel party not communicates all the Glover v. Fleming, 36 Md.App. 381, 373 bearing upon guilt facts accused A.2d 981 Therefore, the respondent known to or whether or not the ac- was not required to produce any evidence acting good upon cused was faith concerning hostility, ill will or a grudge counsel, purely questions advice of are between Huntley Harberts, and the jury.” fact to be determined At 638. trial court properly instructed to this effect. Furthermore, whether or not the el ISSUE THREE ement of malice has been proved by pre *5 The third element of an action for ponderance of the evidence is question of prosecution as set forth in malicious McIn Braathen, fact for the jury. supra. The Kunz, tyre, supra, supra, and earlier jury may infer malice from a prob want of eases, corresponds to the third issue which able cause. Wuest American Tobacco raised, has the absence of Co., 10 S.D. 73 (1898) N.W. 903 cause for the criminal probable proceeding. Dybedahl, Richardson v. 14 S.D. 84 Braathen, supra, In the case of this Court (1900). N.W. 486 We hold that the presence charge by held that the dismissal of a or absence of malice question was a of fact probable court for lack of cause is sufficient for the jury. probable of proof absence cause to satisfy that element of a cause of action for FIVE malicious The appellant has magistrate’s In this order dis- trial court committed reversible error missing was admitted into giving particular instructions and declining Therefore, objection. evidence without give to certain proposed instructions by the whether any or not further evidence was In evaluating whether or not presented to show the absence of the instructions accurately stated the law cause need not even be considered. unduly or unfairly emphasized any as pect involved, of the case and the proof we FOUR adhere to the principle that instructions appel The fourth issue raised must be considered aas whole. e. lant involves the defendant’s failure Dwyer Christensen, 77 S.D. 92 to the element of malice. One of the (1958); N.W.2d Mueller, Mueller v. appellant’s bases for this assertion is that 446, 221 (1974); N.W.2d 39 Pollman v. showing any there was no actual hostili Ahrens, 88 S.D. (1974); N.W.2d 475 ty Huntley or ill will between and Harberts S.D., and Degen Bayman, prior to the time of the incident in question. We determine that there need be no show ing hostility, actual a grudge, or ill will There are no pattern South Dakota support between the individuals involved to jury instructions on malicious used that there was insufficient evidence in additions, trial court With some support the California record to the verdict. from jury instructions Civil, Specifically, BAJI. Jury Instructions exception With the $260.00 Edition, BAJI, 6th employed fees, presented the evidence con- 6.94, 6.96. We 6.91, 6.92, 6.95 and 6.90, Nos. cerning Huntley’s damages extremely instructions, combined these find that vague. While the did testify appropriate instructions additional gave that his nervous condition him some law, constituted Dakota to case and South arrest, subsequent to trouble his he did not the law concern- an accurate statement testify any physical problems any or prosecu- action for ing a cause of medical bills which he sustained. In addi- tion. tion, although testified that newspaper appeared article which ISSUE SIX the Yankton newspaper caused him some damage objected to the embarrassment and was unable to (1) that there reasons: for two basic award did, job usually handle his there was the record to evidence in is insufficient any no evidence decline in his award, (2) that the justify the profits. Furthermore, business or lost been appear to have were excessive Huntley was the witness present- who passion and influence of under the given any testimony concerning ed the damages was insuffi- that there We find prejudice. he suffered. The evidence was insufficient justify in the record cient support the award. damages in the amount of actual award Because the exemplary damage $5,260.00. $15,000.00 award of must have borne some to set has been most reluctant This Court relationship damage award, to the actual they awards on the basis damage aside exemplary award for dam by the evidence insufficiently supported are ages must set also be aside. Keller, Morey v. 77 S.D. excessive. (1957), this stated: Court CONCLUSION appeal will not be disturbed on A verdict *6 excessive “as are so unless hereby This case is remanded to the cir- blush, being, mankind at first to strike cuit court for a new trial on the issue of measure, unreasonable beyond all damages alone. manifestly such as show outrageous, by pas- actuated jury to have been PORTER, JJ., ZASTROW concur. sion, corruption.” prejudice or partiality, DUNN, J., WOLLMAN, J., C. dis- frequently held Additionally, this Court has sent. a new trial has a motion for that where on the basis by the trial court been denied BOTTUM, Judge, sitting Circuit sup- evidence to there is insufficient MORGAN, J., disqualified. verdict, reviewing court will port DUNN, (dissenting). Justice Chief that denial when only disturb I probable e. State would reverse. The cause in- its discretion. has abused Miller, 155 structions do not state the law of South S.D. Highway Com’n confusing. opinion and are (1968) and Neb. Elec. Genera- Dakota N.W.2d 780 S.D., major Coop. Walking, given by attorney part an was a & Trans. tion defense, the defendant’s and Instruction 15 N.W.2d 150 particular prejudicial would be damage the actual We find that defendant. Ad was unreasonable. award of court Instruction 13 states in essence that if the we find that the trial ditionally, full, fair, appel complete defendant made a denying its discretion in abused perti- to an of all the a new trial on the basis disclosure lant’s motion for and material facts of which the de- nent knowledge tending

fendant had or charge the criminal and thereafter

disprove upon attorney, prob-

acted the advice of initiating cause for the arrest existed.

able 15, however, goes say on to

Instruction

“the defendant must not show that he to his counsel all the material

disclosed him, bearing guilt known to on the or

facts plaintiff,

innocence of the but he must also that he disclosed to his counsel

show grounds might

reasonable he have had for

believing that other facts existed that

might exculpate plaintiff, or show that inquiry himself as to such other made expanded duty This set out in In-

facts.” contrary 15 is

struction requirement McIntyre

cause set out in 417, 420,

Meyer, N.W.2d minority according and is a view Prosser, Torts, Ed., 4th pp. 843-

Under the facts of this where it duty

became rather crucial as to whose it may

was to check out what Medema seen,

have the inaccurate statement of the very prejudi-

law in Instruction 15 became

cial to the defendant.

I am authorized to state that Justice joins in this dissent.

WOLLMAN *7 Dakota,

STATE South Plaintiff Respondent, BOARDMAN, Allen Defendant

Steven Appellant.

No. 12152.

Supreme Court of Dakota. South

Argued Jan. 1978. April

Decided