*1 MICHAEL REECE, L. Appellant,
Plaintiff and
PIERCE FLOORING,
corporation,
a Montana
Respondent.
Defendant
No. 80-463.
Submitted on Briefs June
1981.
Decided Oct.
Charles E. Dietrich, Billings, for defen- Hanson, & Haughey, Toole Crowley, respondent. dant and of the Court. Opinion delivered HASWELL
CHIEF JUSTICE Yel- Court of the District prosecution, for malicious In an action of defendant in favor a directed verdict County granted lowstone Plaintiff case-in-chief. plaintiff’s the conclusion Flooring Pierce at appeals. Reece Michael name of working under the business
Reece, building contractor Flooring Pierce since a customer of Enterprises, M R had been & $1,201.20 Flooring 16,1977, Reece owed August On $1,372.80 carpeting Drive and at 807 Saddle carpet installed Flooring a total of Reece owed Pierce at 134 Lantana Drive. installed accounts, including interest. $2,744.56 on the two 16,1977, a check August he wrote left for vacation on Before Reece Intend- to deliver it for him. Flooring and asked his mother to Pierce the Saddle Drive account but ing only the amount owed on pay amount, check to Pierce he wrote out blank recalling particular Drive.” He then asked his noting as a memo “807 Saddle Flooring, account, fill the Saddle Drive find out the amount owed on mother to check, Flooring. give in that amount Flooring, she talked to an Reece’s mother went to Pierce When much desk and asked how was owed employee at the front mother, According testimony of Reece’s Saddle Drive account. amount for pay have to the entire she was then told she would or else Pierce and the Lantana Drive accounts both the Saddle Drive properties. hens on these Concerned about place would $2,744.56, liens, made the check out for possible Reece’s mother rather than entire amount owed on both accounts to *3 Drive account. just the amount owed on Saddle Reece’smother told The check returned for insufficient funds. was delivery her of the her son about the circumstances early September. returned from vacation in He knew check when he he received his statement that the check had not cleared when bank to his arrest on Novem- mid-September. mid-September in From Flooring and 27,1977, further contact with Pierce Reece made no ber pay took no action to his account. Pierce filed liens on both September
On early In properties. the Lantana Drive October Saddle Drive and again returned for insuffi- through rim a second time and check was attempts to contact Reece Flooring made several cient binds. Pierce in mid-October phone was disconnected but failed. Reece’s business mailed to unlisted. Pierce then phone and his home was notifying Reece that criminal a certified letter Reece’shome address Flooring if the check was not may initiated 45-6-316, MCA. The days, in provided five as good § made within Flooring marked “refused”. to Pierce registered letter was returned he registered letter since not received the Reece testified that he had officebox. post but at his his mail at his house address did not receive Pierce, manager Flooring, of Pierce general Ron On October Forgeries” which signed “Investigative Form for Bad Checks County attorney’s form used the Yellowstone was the standard charge. check One prosecute whether or not to bad office to decide payment for an given the check was question asked whether debt, “yes”. deputy The Flooring replied existing which attorney subsequently decided to the case who rejected probably did the trial that he would have testified at of the affirmative answer to reject the case at that time because existing question. debt filed in the Justice
Nevertheless, complaint was on November County issuing on the a bad check of Yellowstone Court purpose property, Reece “with the to secure (felony) in that Michael and fixtures” issued the check. to wit: lien waivers on real estate county attorney came to the deputy record is unclear as to how payment. for full given exchange had been belief that lien waivers such information could county attorney testified that or from an personnel from either law enforcement have come why he Flooring, but he could not remember employee of Pierce had to Reece. thought lien waivers been 27, 1977, in his home. Reece was arrested Sunday, On November County jail until kept in the Yellowstone He was booked $2,800. complaint On December arranged bail attorney grounds that new deputy county dismissed interest of it was not evidence indicated prosecute. for malicious filed a civil act or
Thereafter Reece At for trial on October Flooring. It came on against Pierce granted Court case-in-chief the District plaintiff’s the conclusion of as follows: for a directed verdict motion authority that’s Well, right. gentlemen, “THE All COURT: cause is a me, of lack of that the been cited — specifically and that by the Court oflaw to be determined 83 Montana 252 Company, Metropolitan Insurance is Wendel v. Life — think and dismiss the grant the motion compelled to I the Court is *4 cause, and it is so ordered.” complaint in this essentially issues for two appeals presenting Plaintiff Reece review:
(1) by the determined of law to be question cause a probable Is Court?
95 (2) not, probable jury If is the evidence sufficient to create a issue on cause? prosecution, plaintiff
In a civil action for malicious the must (1) allege prove judicial proceeding that a and commenced (2) him, prosecuted against defendant was responsible the (3) prosecuting continuing or instigating, proceeding, such that there (4) acts, probable was lack of cause for defendant’s that defendant (5) malice, judicial was actuated that the proceeding terminated (6) favorably plaintiff, damage suffered 407,] Armitage (1979), [184 amount thereof. v. McGuire Mont. 603 253, 2142; (1914), 352, P.2d 36 St. v. Rep. Stephens Conley 48 Mont. 138 appeal P. 189. issues in this concern the third element listed above.
In case probable the District Court ruled that of lack cause question was a to be law determined the court on basis of opinion our Metropolitan Co., 1928 v. Wendel Insurance 83 Life Mont. 272 P. This was error. acknowledge general We of an existence isolated statement in Wendelto that effect:
“Therefore, in prosecutions, actions for malicious the real con- is, troversy generally, upon question of malice and want of probable proving cause. The burden of these essential elements rests upon the plaintiff, and whether there was a of probable want cause purely question of law.” Wendel involved a discharged malicious action employee against following his former employer dismissal a lar- ceny prosecution instigated by former A employer. jury his verdict discharged employee favor of the appeal was reversed on ground that the probable uncontroverted facts established cause as larceny matter of law. In that context where the facts of the were n undisputedand the criminal charge was dismissed for failure of the same, diligently prosecute state to cause became a expressly law the court. We disapprove application generally of this rule to actions for malicious holding properly applicable only the rule there is where no conflict evidence the issue of cause uncontroverted evidence admits of one on that issue. conclusion (1978), v. The cases Orser State Montana 582 Belgrade P.2d and 3-D Lumber State Co. Bank similar In P.2d are to Wendel. both cases relating presence evidence or absence of *5 96 undisputed one Under only admitted of conclusion. probable
circumstances the
of
cause became a
of law
issue
involving
Any application
principle
the court.
of that
to cases
conflicting
probable
disap-
on the issue of
cause is expressly
evidence
proved.
(1926),
v.
Puutio Roman 76 rule There this Court reversed correct in malicious cases. setting a the applicable directed verdict for the defendant forth law in language: jurisdiction, generally,
“It is settled in this and elsewhere that a jury, from the cause should never be withdrawn the unless conclusion follows, law, recovery necessarily of that a cannot be had as matter reasonably upon any view which can be taken of the facts which the in evidence tends to establish. Amotion for a directed verdict favor plaintiff’s the is in effect a demurrer the evidence which defendant action, be plaintiff’s tend to establish cause whether such facts by facts, every produced plaintiff the or the defendant. Such with them, legitimate may inference that are to be con- be drawn light plaintiff. sidered in to the fact that the the most favorable testimony pleaded in is uncontradicted will not behalf the defense defendant, if the inferences justify a directed verdict favor open to be drawn from are to different conclusions reasonable omitted.) (Citations men.” recently judge jury function was
The distinction between the
succinctly
Georgia
Appeals
this maimer:
expressed by
Court
element of a malicious
probable
“Want of
cause is
essential
Ordinarily,
probable
the existence of
prosecution cause of action.
jury
Only where the
is a
of fact for
determination.
cause
dispute,
inference
are not in
or when
reasonable
material facts
evidence,
cause
can
drawn from
does the existence
be
(1979),
to resolve.”Kviten Nash
become an issue oflaw for
court
Ga.App.
Additionally employee Flooring an of by deposition testified that she kept anything Pierce informed of on the case that came to disputed many her attention and of indicating Pierce’s statements his lack knowledge developments concerning progress of prosecution in the The charges against case. basis of the criminal given Reece was that the check was to secure lien from Pierce waivers properties. prosecutor Flooring two When the contacted Pierce waivers, copies of the lien did tell him employee not there him stating: were no lien waivers but instead wrote a memo copy girl “I can’t find a of the lien The that here waiver. was before always copies me would not take of the lien waivers.” 4,1977, This memorandum was dated November almost two months Flooring against properties. after liens had been filed both foregoing present We hold that the evidence is sufficient to a jury presence issue on the or absence of cause for the prosecution against plaintiff presents Reece. The total a evidence differing concerning basis for conclusions whether Pierce reasonably actions were those that would warrant a cautious and prudent guilty man that to believe fleece was offense which charged; he was whether the facts the issuance and fairly delivery presented of the check were to law enforcement of- ficers; preexisting filed to a debt with whether the was collect Reece; nothing and whether Pierce fabri- value against facts to Reece. These are proceedings cated motivate criminal questions by jury, issues for determination a law to be decided concerning the deter- express opinion the Court. We no ultimate issues, they properly mination of these are to be resolved by jury. judgment
The are vacated. This cause is directed verdict remanded the District Court for new trial. SHEA, MORRISON and SHEEHY concur.
JUSTICES DALY,dissenting: JUSTICE
I respectfully dissent. luxury becoming has majority The here allowed themselves etc., waivers, lien Herrings of Red involved a morass about evidence, totally disregarded authority has uncontroverted proceeds through county attorney a citizen pertains when i.e., directly, complaint. than court rather Pierce, general manager of Pierce On October Ron Flooring, signed “Investigative an Form Bad Checks County Forgeries,” standard form used the Yellowstone charge. decide a bad check Attorney’s office to whether including out one which asked properly, was form filled debt, existing to which given payment whether check “yes.” county attorney who sub- replied *7 at that to the case the trial he sequently decided testified case, reject did at that time rejected, probably have would existing debt question. to the answer because of affirmative Nevertheless, complaint was filed in the Justice on November issuing a check County charge bad Court of Yellowstone property, to purpose in Michael Reece “with the secure (felony) that and fixtures” issued the check. lien waivers on real estate to wit: deputy county attorney came is unclear as to how the record exchange given payment. in that lien waivers had been for full belief The attorney could have county deputy information testified employee personnel or either law come from enforcement why thought lien not remember Flooring, but he could given to Reece. waivers had been from Pierce attorney’s office received a note copies a lien could not stating that waiver
on November county attorney who swore out the be found. The affidavit complaint against Reece that had he not been support testified at that time or would have busy, so he would have dismissed the case that lien waivers could not be and then would have confirmed dismissed the case. found Sunday, 27, 1977, On November Reece was arrested his home. kept County jail He was booked and in the Yellowstone until he arranged $2,800. complaint bail of On December by deputy county attorney grounds dismissed that new evidence indicated that it was not in the interest of to prosecute. essentially presents Reece one issue review: Whether the Dis- by granting
trict Court erred motion for directed grounds verdict that Reece failed to show want of part Flooring. cause on the of Pierce argues
Reece of want of cause should by not have been decided the District Court as a matter oflaw because the record proof contains sufficient submit this jury. argues issue to the He specifically that when the evidence he presented light is viewed in its most favorable it shows:
1. Pierce Flooring’s actions were not those of a prudent, cautious man; and reasonable All facts the check fairly fully were not officers;
represented to the law enforcement preexisting 3. The was filed to collect a nothing debt and Reece; value was 4. Pierce failed inquiry to make sufficient into the issued; circumstances under which the check was Flooring intentionally 5. Pierce misled the law enforcement officer and fabricated facts to motivate criminal proceedings against Reece. upon
It is true that party, motion for a directed verdict opposing party evidence introduced must be viewed its most light. Telephone Systems, favorable See Sistock v. Northwestern Inc. 82,], 1247, 1249, [189 Rep. 615 P.2d 37 St. Nevertheless, cases cited therein. such a rule mean that does not supported Court can make numerous factual inferences which are not Considering light the record. the evidence in the most favorable Reece, say I cannot that the District Court erred in its verdict.
100
Further, a well-settled rule in that it function is this state is the probable ofthe court determine cause exists in a malicious whether case; prosecution question by it is a of law to determined the court. be (1978), 126, 1227; Orser v. State 178 Mont. 582 P.2d 3-D Lumber Co. 1136, Belgrade (1971), 481, 488-489, 487 Bank 157Mont. State P.2d 1140; (1928), Metropolitan Wendelv. Ins. Co. 83 Mont. Life 245, 272 P. acting District Court was therefore within its verdict, prerogative to decide this case on a a matter of directed as law, if the supports present record its conclusion that Reece failed to and, particular, prima his case malicious facie Flooring Reece failed to show that Pierce acted without by County Attorney going filling to Yellowstone out information had sheet on checks. gist
There is
that want of
cause is
of an
no
(1979),
prosecution.
Armitage
[184
action for malicious
McGuire v.
407,]
253,
(1968),
St.Rep. 2142;
Gehring
Mont.
603 P.2d
36
Wilson v.
221,
678;
(1949),
P.2d
Fauver v.
123 Mont.
448
Wilkoske
228,
420;
239,
211
Hamilton
62
204 P.
P.2d
Cornner v.
Mont.
sup
ground
suspicion,
489. Probable cause means “reasonable
sufficiently
ported
strong
circumstances
themselves to warrant
and cautious man in the belief that the accused
reasonably prudent
Cornner,
he is
Mont.
guilty
charged.”
is
the offense with which
62
Orser,
137,
as
Mont. at
P.2d
quoted
at
Reece, therefore, Flooring heavy had a to show that Pierce burden heavy cause, clearly he cannot meet that acted without inferences. arguing burden tenuous full of all Although may as to a disclosure there some check, it is the facts the issuance of the clear at relying made Flooring upon was decisions record county attorney’s concerning what information office important. was not important and what information attorney’s accurately county out the truthfully and information filled was based. on which the decision to sheet of lien was eradicated Any waivers confusion over existence note from attorney’s received the office November when any lien waivers. From that there was no record of arrested, accord- Reece was 8,1977, to November when November *9 of the county attorney testimony the of the ing case, disclosure ofinformation there was sufficient dismissal of the case. to warrant Halladay Bank et al. noted in v. State As this Court of Fairfield 117-118, 212 P. 863-864: that, prosecuting where the states a criminal “... The rule is officer accuser, the
proceeding upon a statement full fair facts from state; proceeds upon his own he acts and so he does when personal knowledge ... “Generally, may prosecuting charged said that a officeris with it be duty determining particular prosecution, to commence a when upon footing to discontinue it. He stands when different from warrant, defendant, goes peace, who to a swears out a county prosecuting and directs the to see to its execution. The officer state, attorney in this not directs under what conditions a commenced, begins criminal action but the time it until shall supervision complete, only by and control is limited ends his imposes as the law ... restrictions If, therefore, incorrectly prosecuting
“... officer determines that proceeds certain facts to him constitute a crime and to set on liable, necessary action, foot is not because the informant fault his, (Emphasis supplied.) but that ...” officer In reliance light expertise of Pierce attorney’s important office in terms of information was what not, acting what was it cannot be said that was not prudently cautiously and without cause. I would affirm Flooring. Court’s directed verdict for Pierce District