Heinley, Robert C

English

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North Dakota Law Review Volume 31 Number 3 Article 3 1955 Torts - Malicious Prosecution - The Requirement of Special Injury Robert C. Heinley Follow this and additional works at: https://commons.und.edu/ndlr  Part of the Law Commons Recommended Citation Heinley, Robert C. (1955) "Torts - Malicious Prosecution - The Requirement of Special Injury," North Dakota Law Review: Vol. 31 : No. 3 , Article 3. Available at: https://commons.und.edu/ndlr/vol31/iss3/3 This Note is brought to you for free and open access by the School of Law at UND Scholarly Commons. It has been accepted for inclusion in North Dakota Law Review by an authorized editor of UND Scholarly Commons. For more information, please contact und.commons@library.und.edu. NOTESby legal restrictions. What it does mean is that in the absence ofconduct so unreasonable as to be almost entirely without any con-ceivable justification, an irate debtor will find expenditure of fundsin satisfaction of his obligation to be a more rewarding investmentthan prosecution of a law suit against his overzealous creditor.H. M. PIPPIN.TORTS-MALICIOUS PROSECUTION-THE REQUIREMENT OF SPECIALINJURY.-The action of malicious prosecution is a specific tort,classified by Cooley as a wrong affecting personal security.1 Acause of action for malicious prosecution is based on breach ofthat legal duty which every man owes to another to refrain frorninstituting proceedings when malice is present and he has noprobable cause to justify his action. It has been stated that such aprosecution is one that is begun in malice, without probable causeto believe it can succeed, and which finally ends in failure.2 Theaction of malicious prosecution has been referred to as one notfavored by the law3 but it is agreed that when the requisite ele-ments exist the action will lie.The elements of an action for malicious prosecution are: (1)the commencement or continuance of an original criminal or civiljudicial proceeding by the present defendant against the presentplaintiff; (2) its bona fide termination in favor of the presentplaintiff; (3) the absence of probable cause for such proceeding;(4) the presence of malice; and, (5) damage resulting to the pres-ent plaintiff.' The burden is upon the plaintiff to show the con-current existance of these requirements.The question of the quantum of damage the plaintiff must suf-fer when the action is founded on the malicious prosecution of acivil suitV is a perplexing one. One view is that an action will notlie unless there has been an arrest of the person, seizure of prop-erty or other special injury which would not necessarily result inall suits prosecuted to recover for like causes of action.°1. Cooley, Torts 381 (4th Ed. 1932).2. See Burt v. Smith, 181 N. Y. 1, 73 N.E. 495, 496 (1905); Kunz v. Johnson, 74S. D. 577, 57 N.W.2d 116, 119 (1953).3. See, e.g., Ball v. Rewles, 93 Cal. 222, 28 Pac. 937, 938 (1892); Alexander v.Petty, 108 A.2d 575, 577 (Del. 1954); Davis v. Brady, 218 Ky. 384, 291 S.W. 412(1927); North Point Construction Co. v. Sagner, 185 Md. 200, 44 A.2d 441, 444 (1945).4. See Turner v. J. Black & Sons, 242 Ala. 127, 5 So.2d 93, 94 (1941); Kunz v.Johnson, supra note 2 at 118.5. The discussion of damage herein is confined to damage arising from the prosecu-tion of a civil suit. The conflict concerning quantum of damage is not present when the-suit complained of was a criminal action.6. See, e.g., Counihan v. Ferrell, 89 Ga. 795, 81 S.E.2d 215 (1954); Schwartz v.Schwartz, 285 Il. App. 560, 2 N.E.2d 751 (1936), affirmed, 366 I1. 247, 8 N.E.2dNORTH DAKOTA LAW REVIEWThe case of Aalfs v. Aalfs,7 a suit for malicious prosecution,arose out of an action for recission of a contract of sale of aninterest in a business. Plaintiff alleged damage consisting of im-paired credit, a clouded title, impaired saleability of property;damaged reputation, humiliation and expenses of defense. Thecourt held that these were incidents which would attach to anysuit for recission of a contract of sale, and that such elements ofdamage did not constitute the requisite special injury to maintainthe action. Courts adopting this view contend that such damagesare but the uncompensated burdens of litigation for which theaction of malicious prosecution will not lie.8 A right of action hasbeen found to exist where a partner was deprived of his propertydue to the appointment of a receiver over partnership property;"where assets were tied up by the malicious institution of bank-ruptcy proceedings;"0 where a party was arrested and held to bailin civil process;'- and where there were unfounded proceedings inforcible entry and detainer. 12 Such incidents of damage are thoughtto constitute special injury.The opposite view, taken by a seemingly equal number ofcourts, is that an action will lie for the institution of a civil actionmaliciously brought without probable cause even though therehas been no interference with the person or property of the de-fendant in the original suit and no special injury is shown."3 Therationale behind this theory is that one who maliciously sets inmotion the formidable machinery of the courts to the oppressionand harassment of his neighbor, abuses the process of the law in-tended for parties who act in good faith. His offense is of thesame character as that of one who accompanies such an actionwith the seizure of the person or the property of the defendant,but of a lesser degree.' 4 These courts advance the common lawmaxim that for every wrong the law furnishes a remedy, and argue668 (1937); Smith v. Michigan Buggy Co., 175 Ill. 619, 51 N.E. 569 (1898); Wet-more v. Mellinger, 64 Iowa 741, 18 N.W. 870 (1884); Cabakov v. Thatcher, 27 N. J.Super. 404, 99 A.2d 548 (1953); Johnson v. Walker Smith Co., 47 N.M. 310, 142 P.2d546 (1943).7. 66 N.W.2d 121 (Iowa 1954).8. Johnson v. Walker Smith Co., supra note 6.9. Luby v. Bennet, Ill Wis. 613, 87 N.W. 804 (1901).10. Norin v. Scheldt Mfg. Co., 220 Ill. 521, 130 N.E. 791 (1921).11. Cardival v. Smith, 109 Mass, 158, 12 Am. Rep. 682 (1872).12. Pope v. Pollock, 46 Ohio St. 367, 21 N.E. 356 (1889).13. Turner v. J. Black & Sons, 242 Ala. 127, 5 So.2d 93 (1941); Peerson v. Ash-craft Cotton Mills, 201 Ala. 348, 78 So. 204 (1918); Ackerman v. Kaufman, 41 Ariz.110, 15 P.2d 966 (1932); Easton v. Bank of Stockton 66 Cal. 123, 4 Pac. 1106 (1884);McCormick Machinery Co. v. tWilliam, 63 Neb. 391, 88 NW. 497 (1901); Kolka v.Johes, 6 N. D. 461, 71 N.W. 558 (1897).14. See Lipscomb v. Shofner. 96 Tenn. 112, 33 S.W. 818, 819 (1896).NOTESthat to refuse the action in the absence of special damage wouldbe to violate this well recognized principle. If an individual hasprostituted judicial process to gratify personal malice, the courtsshould afford the party wronged redress for the damage sustainedby him.'The courts that require special injury reason that there shouldbe no restraint upon the original suitor through fear of liabilitywhich may arise from failure in his action. He should not ordinarilybe subject to a suit for bringing an action, and be required to de-fend against the charge of malice and the want of probable cause.-Advocates of the special injury criterion maintain that in a civilaction the measure of damages of a successful defendant is statu-tory costs however inadequate they may be.I These courts claimsupport for their position from the fact that by the Statute of Marl-bridge,," the English courts abolished the cause of action fordamages for the malicious prosecution of civil suit.In the leading North Dakota case of Kolka v. Jones,19 the judgehad this to say in commenting on the arguments of courts in thiscountry claiming support from the English rule:-"Ignoring the differences between the phraseology andmanifest purpose of the statutes regulating costs in this country,and the letter and obvious spirit of the Statute of Marlbridge,the assertion is not infrequently made that costs afford fullindemnity, though the suit be instituted without probablecause, and prosecuted in a spirit of malice. To our minds thisargument does not rise to the dignity of sophistry. The claimthat the payment of statutory costs will in all cases or even inany case make amends for the damage inflicted by the mali-cious prosecution of a civil suit is palpably false... Subsequentlegislation in England shows that the Statute of Marlbridgewas enacted, not as a general law regulating costs, but to afforda summary remedy to the-successful defendant in place of theexisting cause of action to recover his damages on account of15. See Ackerman v. Kaufman, 41 Ariz. 110, 15 P.2d 966, 967 (1932); Closson v.Staples, 42 Vt. 209, 1 Am. Rep. 316 (1869).16. See, e.g., Smith v. Michigan Buggy Co., 175 I1. 619, 51 N.W. 569, 571 (1898);Aalfs v. Aalfs, 66 N.W.2d 121, 123 (Iowa 1954).17. See Muldoon v. Rickey, 103 Pa. St: 110 (1883). Cf. Smith v. Michigan Buggy Co.,note 16 supra at 571, "'It is urged that the costs which are awarded to the successful de-fendant in a civil suit, malicious in its character, and brought against him without prob-able cause, are inadequate compensation for the injury which he suffers. But the questionof the amount of costs which are to be allowed the successful party is a question to bedetermined by the legislature, and not by the courts.!'18. See Myre v. Hessey, 242 Wis. 638, 9 N.W.2d 106 (1943) at 110: "The onlyreference to malicious prosecution that we find in the statute is in Par. II of c. VI thereof,pp. 60, Vol. 1, English Stats. at Large, where the English translation given reads as follow:s'And if any chief lords do maliciously implead such feofees, faining his case, namely,where the feoffments were made lawfully and in good faith, then the feofees shall havetheir damages awarded and their costs which they have sustained by occasion of theforesaid plea, and the plaintiffs shall be grievously punished by americiament.'19. 6 N. D. 461, 71 N.W. 558 (1897).NORTH DAKOTA LAW REVIEWthe malicious prosecution of a civil action against him . . .The act of the British parliment which Was held to have takenaway the existing cause of action for damages for the maliciousprosecution of a civil stit was an act which in terms was limitedto cases of that kind; and when it is remembered that it gavethe defendant not merely costs, but also his damages, it isobvious that the statute was framed to give the successfuldefendant his remedy in the very case in which he was malic-iously prosecuted, instead of compelling him to seek redress inan independent action. The Statute of Marlbridge was limitedto civil actions maliciously prosecuted, and gave the defendantthe damages he had suffered because of such perversion of theforms and remedies of the law, whereas the statutes regulatingcosts on this side of the water are not restricted to actions inwhich the motive promoting the litigation was unjustifiable, butare intended to apply to all cases, to the end that some indem-nity to the other suitor may be afforded in every case, inde-pendently of the state of mind of the person bringing the suit,on the question whether he had reasonable ground :lor believingthat the action could be maintained; leaving the remedy for aperversion of legal machinery to the common law maxim thatfor every wrong the law will give legal redress."20Another argument advanced in favor of the requirement ofspecial damage is that the application of the reasoning behind theprivilege extending to defamatory matter contained in pleadingsleads to the conclusion that the instituting of civil proceedingsshould be similarly privileged unless special injury results.- Thedissenting opinion in the very case in which this argument was ad-vanced, countered with these persuasive words: ". . . [B]ecauseone is privileged to libel another in an action brought to secureadjudication of a claim he should not be privileged to maliciouslyinjure another when the entire action is maliciously brought for apurpose other than securing adjudication of the stated claim."12A more common contention of courts requiring special injury isthat to permit the action would be to promote litigation and en-courage successive suits, thus clogging the channels of litigation.2"The theory is that a successful defendant would be tempted tobring another suit to recover for the damages resulting from hisprosecution of the first suit which he had won. 4 Thus it is saidif A sues B and loses, he might be subjected to a return suit based20. Id. at 463, 71 N.W. at 560. See also Ackerman v. Kaufman, 41 Ariz. 110, 15P.2d 966 (1932).21. See Aalfs v. Aalfs, 66 N.W.2d 121, 123 (Iowa 1954).22. Id. at 128.23. See, e.g., Wetmore v. Mellinger, 64 Iowa 741, 18 N.W. 870, 871 (1884); Abbotv. Thorne, 34 Wash. 692, 76 Pac. 302, 303 (1904); Myhre v. Hessey, 242 Wis. 638, 9N.W.2d 106, 110 (1943).24. See Smith v. Michigan Buggy Co., 175 Il1. 619, 51 N.E. 569, 571 (1898).NOTESon alleged malice in bringing the first action. But if B should failin his suit for malicious prosecution, A might then bring his ownaction in turn, alleging malice and want of probable cause in B'ssuit, thus producing an endless chain of actions.25The proponents of the contrary view point out that the fearsof a multiplicity of suits have not been realized in those jurisdic-tions allowing the action in the absence of special injury.2  Suchfears have little foundation, as the party who has sustained theburden of one action will be unlikely to assume so quickly the ex-pense of a second suit unless he is reasonable assured of success.27The courts adopting the requirement of special injury to main-tain an action for malicious prosecution based on a civil suit con-strue the bringing of two or more successive suits on the samealleged cause of action to be special injury for which the actionwill lie.2' Courts- construing successive suits to be special injuryfor which the action will lie point out that the right to litigate isnot the right to become a nuisance. 29 Again it would seem that theoffense is of the same character but only lesser in degree. In somejurisdictions the courts partially subvert the requirement of specialinjury by liberally construing that requirement."0 For example, ithas been held that the prosecution of an appeal as part of themaliciously insituted action gave rise to special injury."'The two widely divergent views on the requirement of specialinjury point out the need of striking some sort of balance betweenthe prevention of unconscionable suits and permitting honest as-sertion of supposed rights.ROBERT C. HEINLEY.25. See Aalfs v. Aalfs, supra note 21 at 124.26. See Kolka v. Jones, 6 N. D. 461, 71 N.W. 558, .561 (1897).27. Ibid.28. See Soffos v. Eaton, 152 F.2d 682 (D.C. Cir. 1945); Shedd v. Patterson, 302 Il1.355, 134 N.E. 705 (1922).29. See Melvin v. Pence, 130 F.2d 423, 426 (D.C. Cir. 1942).30. See Peterson v. Peregoy & Co., 180 Iowa 325, 163 N.W. 224, 226 (1917); Holtv. Boyle Bros. Inc., 217 F.2d 16 (D.C. Cir. 1954).31. See Soffos v. Eaton, supra note .28.

Torts - Malicious Prosecution - The Requirement of Special Injury

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Torts - Malicious Prosecution - The Requirement of Special Injury

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