Obeginski v. James , 4 Mich. App. 90 ( 1966 )

4 Mich. App. 90 (1966) 143 N.W.2d 579

OBEGINSKI
v.
JAMES.

Docket No. 583.

Michigan Court of Appeals.

Decided July 26, 1966. Rehearing denied September 9, 1966.

Manikoff & Munde (Raymond D. Munde, of counsel), for plaintiff.

Walter A. Kurz, for defendant.

T.G. KAVANAGH, J.

The defendant began construction of a house in 1957. The plaintiff, a ceramic tile mason, was engaged to do the tile work on the house. The defendant maintains that she was the general contractor for the job who employed the plaintiff directly to work under the direction of one Freeman Brandt who was defendant's supervisor. The plaintiff claims that he was a subcontractor employed by Freeman Brandt who was the general contractor on the job.

In any event plaintiff did the work and it was unsatisfactory to the defendant. She made a complaint to the Oakland county prosecuting attorney charging that the plaintiff was an unlicensed contractor who violated the builders licensing law^[1] and the plaintiff was tried and acquitted of the charge.

Thereafter the instant suit was brought for malicious prosecution and the jury awarded plaintiff $3,000 damages.

The various assertions of error urged in this appeal are properly considered in three questions:

1. Did the plaintiff-appellee fail to establish a prima facie case of lack of probable cause requiring a directed verdict as a matter of law?

2. Was there such great weight of evidence to the contrary that the verdict should have been set aside or the defendant-appellant's motion for judgment non obstante veredicto granted?

3. Did the trial court err in its rulings limiting the examination and not limiting the cross-examination of defendant-appellant's witnesses and instructing the jury?

With reference to the first question, it is firmly established that if the facts are not in dispute, the existence or want of probable cause is a matter of law to be determined by the court. Rankin v. Crane (1895), 104 Mich 6; Merriam v. Continental Motors Corporation (1954), 339 Mich 546; Renda v. International Union, UAW (1962), 366 Mich 58; and Drobczyk v. Great Lakes Steel Corp. (1962), 367 Mich 318.

It is equally well established that if the facts are in dispute, since probable cause is a mixed question of law and fact, it should be left to the determination of the jury under proper instruction. Fine v. Navarre (1895), 104 Mich 93; Slater v. Walter (1907), 148 Mich 650; and Hall v. American Investment Co. (1928), 241 Mich 349.

The appellee testified that the appellant came to his house, informed him that she wanted an estimate on the tile work to be done at her house and in response to his inquiry informed him that the builder was Freeman Brandt whom the appellee knew. He then went to Freeman Brandt, informed him of his conversation with appellant that she wanted the appellee to do the work, and Brandt approved.

Under the builders licensing statute, supra, if a subcontractor does work for a licensed builder the subcontractor does not have to be licensed. If the facts were as appellee related, he violated no law.

On January 3, 1961, the appellant wrote the appellee a letter in which she stated that there were certain defects in the tile work and advised him that since he had no license at the time he did the work it was a criminal offense for him to have performed it. She stated in the letter that her only concern was to get the work corrected and bring the unpleasant matter to a close.

She denied that her purpose in signing the criminal complaint was to get the work corrected. The jury was free to accept her disavowal of the purpose or free to infer from her letter and the surrounding circumstances that she acted maliciously in signing the complaint to effect a private benefit.

There was evidence in the record from which the jury could conclude that the appellant informed the appellee that Freeman Brandt, a licensed contractor, was the builder and that she didn't make a full and fair disclosure to the prosecutor when she signed the criminal complaint and that she signed it in order to effect the correction of the defective tile work.

The jury is the sole judge of the credibility of the witnesses, the weight to be accorded their testimony and it may draw reasonable inferences from the evidence. Albu v. Sweeney (1959), 355 Mich 385.

The record shows no request for instructions nor objection to those given. Under the provisions of GCR 1963, 516.2 we may not consider any error alleged in this regard.

The record further discloses that the trial judge did not abuse his discretion in controlling the examination and cross-examination of the witnesses. We find no error that appears inconsistent with substantial justice. GCR 1963, 529.1.

Judgment affirmed. Costs to appellee.

LESINSKI, C.J., and McGREGOR, J., concurred.

NOTES

[1] CLS 1956, § 338.971 et seq. (Stat Ann 1957 Rev § 18.86[1] et seq.).