Zitkov v. Zaleski , 102 Conn. 439 ( 1925 )

Turning first to the errors assigned upon the trial court's refusal to correct the finding, we find that the finding, so far as it states facts found as distinguished from conclusions, contains twenty-eight paragraphs, and of these the defendant moved to strike out twelve, which latter are those most concerned with the vital issues in the case. Defendant asks for the addition of ten paragraphs or parts of paragraphs. If the motion were granted in full, the result would be a nearly complete reproduction of the defendant's draft-finding, and of course would not justify the conclusions of the court. None of the findings sought to be cut out were found without evidence; they were found upon conflicting evidence. The additions sought were none of them admitted and undisputed. With regard to the alleged error in drawing a conclusion from the evidence, in the memorandum of decision, since the memorandum is not part of the finding we cannot pass upon the question. However, it was simply a forcible statement of want of probable cause, and is in other language contained in the finding. The two closely related assignments of error that there was no evidence that the plaintiff had suffered loss of reputation and business, and hence the damages allowed were not justified, are not meritorious. Waiving the informality of the assignment of error, in that it is founded on an assumed lack of evidence, and treating it as addressed to a lack of finding by the court of any loss of reputation or business on the part of plaintiff, we may say that the court has found that the plaintiff bore the reputation of an honest man, and his arrest caused him great humiliation. This would naturally be the case, and he is entitled to some damages on that account. Moreover, he had incurred an expense of $65 in defending himself on the criminal charge, and would incur expense in the present action, and since the court found express malice in the prosecution of the criminal complaint, this expense would be allowed him as punitive damages in so far as it exceeded the taxable costs. With all these facts in view, it is of little account that no particular sum as special damages as alleged with reference to reputation and business, was found by the court. As early as 1698, Lord Holt, in Savile v. Roberts, 1 Ld. Raymond, 374, 378, enumerated as one of three elements of damages in actions for malicious prosecution, "the damage to a man's fame, as, if the matters whereof he is accused be scandalous." When the expenses of defense of the criminal accusation and those of the present action are added together, there would remain very little by way of compensation for humiliation and injured feelings. There is sufficient in the facts found to show that the judgment given is not made up of items not legally allowable.

We pass to the principal contentions of the appellant, that the court was not justified in finding want of probable cause and of malice. In the case of Stone v. Stevens, 12 Conn. 219, 229, this court defined probable cause to consist of such "facts proved, as would reasonably induce an impartial and reasonable mind to suspect and believe that the plaintiff had stolen the property of the defendant, as claimed by him; . . . such facts would amount to sufficient evidence of probable cause; but that mere conjecture or suspicion did not amount to such probable cause as would justify the defendant. . . . That it was incumbent on the plaintiff to prove malice in the defendant in the prosecution of the plaintiff; but if they [the jury] found that the defendant had proceeded without probable cause, they might presume from that circumstance that the prosecution was malicious. And yet, if the defendant had, to their satisfaction, rebutted such presumption, which he might do, and proved that he instituted and prosecuted the search warrant, without malice and for justifiable ends, their [the jury's] verdict ought to be rendered in his favor, notwithstanding they might believe there was no probable cause." The doctrine thus enunciated has been consistently followed in this jurisdiction in a number of cases; particular reference may be made to Thompson v. Beacon Valley Rubber Co.,56 Conn. 493, 16 A. 554, and Shea v. Berry, 93 Conn. 475,478, 106 A. 761. In the latter case the court observes: "Belief alone, however sincere, is not sufficient, for it must be founded on circumstances which make the belief reasonable."

The existence or nonexistence of probable cause is a question to be decided by the court upon the facts found. Proceeding to consider these, we find that when the plaintiff went to work there was upon the lot on which the house was being built, a quantity of building material, lumber and planks left over by those who had worked earlier upon the building, the property of defendant, and also two planks, 2x9x14, the property of the plaintiff and used by him for staging while working on the job, which latter pieces of lumber were known by defendant to belong to the plaintiff, and which through Gorski he asked plaintiff to remove; Gorski delivered the message, and he and plaintiff removed these two planks. Mrs. Marcniak and one Stankevich saw the removal, and each notified defendant of that fact. Azzian, the painter, informed defendant that he saw plaintiff and Gorski remove finishing lumber. Plaintiff and Gorski had about this time in fact removed various tools belonging to them, including miter-boxes and sawhorses. They had not in fact removed any of defendant's property. Defendant, knowing that he had notified plaintiff to remove the planks above referred to and having received no information except what Azzian had told him of the taking of any other property, made no inquiry to ascertain whether plaintiff had removed any other material or in fact whether they had removed the planks, but with a mind embittered toward plaintiff, proceeded to cause the criminal prosecution through the grand juror. The slender reasons above set forth are not grounds of probable cause. Defendant should have made further investigation than he did make of the actual facts in the matter before proceeding to institute a criminal prosecution. It seems quite evident that his experiences with plaintiff in adjusting his account with plaintiff, had so aroused his resentment, that his action proceeded from prejudice and animosity and not from any desire to punish a wrongdoer in furtherance of public justice.

There was want of probable cause from which the court properly inferred malice, since the finding discloses no facts rebutting this presumption. But it was also the right of the plaintiff to show express malice by testimony, and the court has evidently found the existence of express malice. The conclusion of the court is that defendant acted "without probable cause and with malice in bringing his complaint." This perhaps does not clearly indicate whether the court presumed malice from want of probable cause or found express malice. A reference to the memorandum of decision, however, clearly shows that express malice was included in the court's decision. Express malice is a question of fact. Smith v. King, 62 Conn. 515, 523,26 A. 1059. The facts as set forth in the statement fully warrant such a finding. The parties had had a dispute as to the amount due for services of plaintiff; they were as far apart as $200 and $678.60. The plaintiff then filed a mechanic's lien, which prevented defendant from securing a mortgage until the lien was released. Defendant was thus compelled to pay $600 to get the lien off of record, and this was a cause of bitter feeling on his part toward the plaintiff. The court further finds that by virtue of the warrant in the prosecution initiated by defendant, plaintiff was arrested upon Sunday while he was entertaining a small party of friends. Nothing in the record shows any reason for such procedure other than to humiliate and annoy plaintiff, and the court finds that his arrest caused him great humiliation.

There is no error.

In this opinion the other judges concurred.