Teesdale v. Liebschwager, File No. 4573

File No. 4573 | S.D. | Nov 8, 1919

WHITING, J.

This appeal presents but one question: Does an action for damages lie against one who riialiciously and without probable cause' institutes a civil action, in which action the defendant was not deprived of his liberty or. property and was not injured in his business? The trial court held that no action lies.

[1] While it is true that the courts of a number of states sustain the conclusion of the trial court, the majority of the American .courts hold to the contrary, and. sustain what Cyc. terms the “American rule,” and we are fully convinced that such rule is founded on sound reasons.

[2] - It is not the'purpose of the lav? to unduly discourage any one from resorting to the courts- for a determination of rights or remedies to which he in good faith believes himself entitled. It is for this that courts are created, and a good-faith resort to them ..is .the right of every person. The only penalty inflicted by statute upon one who, while acting in good faith in bringing an action, ’ 3et fails to recover,'is that he'must pay certain sums denominated “costs.” " It is true that a defendant may suffer a heavy financial. loss through being sued;.'but, if the action was brought in good faith, his damages are not the result óf a_ legal" injury — the plaintiff was but' pursuing a legal right, resulting’ in damnum absque' injuria.

. But, while a man has a legal light to, in .g'ood faith, resort to the courts for-a determination of a claimed-legal right or remedy, no person haé' 'any 'right, recognized by the -law, to maliciously and without probable 'cause hale his fellow man into either a criminal, or civil court.. So to do is unlawful, and entitles the wronged -party to -damages -for the detriment .suffered. Sections 1959; I960,' Rev. Code 1919. To hold that statutes, allowing a successful defendant costs, furnish the ohly indemnity for. such defendant, and.this whether or no. there has been a malicious perversion of legal remedies, places the plaintiff who lawfully uses, and the plaintiff who - maliciously perverts the right to sue, upon precisely the same footing with respect to the question of liability for their respective acts.. Kolka v, Jones, 6 N. D. 461, 71 N. W. 558, 66 Am. St. Rep. 615. To thus place one who maliciously perverts the remedies which the, law has provided for .the good-faith litigant -upon the same • footing as such go.od-faith litigant would .not only be monstrous and unjust, but fraught with great public evil,.'in that it would.encourage the unscrupulous to .use our courts .as instruments with which to maliciously injure their fellow men.-

In support of our conclusion, see 26 Cyc. 15, and 18 R. C. L. 14, as well as the large number of. opinions cited therein in support of the “American rule.”

The judgment and order appealed from are reversed.

McCOY, J., not sitting.