Shippers' Best Express, Inc. v. Newsom

PER CURIAM: This is an appeal from a judgment and verdict in favor of Newsom for $6,800 on his counterclaim for malicious prosecution in a suit by Shippers’ against him (an independent truck driver) based on breach of a lease of one of Shippers’ trailers. Shippers’ was awarded $3,552 for the breach, as against Newsom’s counterclaim judgment. Newsom made a number of hauls under the lease, which called for 67 percent of the gross revenues. The controversy between the two revolved around variations of the terms depending on kind of freight hauled, whether the cargo was dairy or meat products, dead-heading, layovers, and the like. Newsom claimed he was losing money and told Shippers’ he would have to quit, but demanded an accounting before he returned Shippers’ trailer, a matter before the jury for deliberation. This was followed by Shippers’ trying to locate the trailer. After an impasse, Shippers’ gave the police details of the contract arrangements and its inability to locate the trailer, and it appears that the police had considerable difficulty locating either Newsom or the trailer. All this occurred before Shippers’ filed any civil action. When Officer Westley finally contacted Newsom by phone, the latter told him that it was a civil matter and refused to say where the trailer was. Further attempts to locate the trailer by police and highway patrol proved unsuccessful. West-ley, after a heated telephone conversation with Newsom, went to the county attorney’s office with the information. The latter issued a complaint and Newsom was [1317] arrested. At a conference at arraignment between him and Shippers’ and the attorneys, a dismissal was agreed upon if New-som told where the trailer was. He returned it to Shippers’ yard that night, where Shipper inspected it, claiming some things were missing. Newsom removed the trailer, and Shippers’ sued in replevin. Newsom claimed no default in the lease, and that when he called Shippers’ about it, he was told that he stole the trailer, to forget it, was otherwise abused, and that his arrest was punitive. The jury apparently agreed, — involving the important factor of intention in a malicious prosecution suit. Shippers’ urged there 1) was no valid claim, 2) no malice or absence of probable cause, 3) the criminal action did not result in Newsom’s favor, and 4) parol evidence erroneously admitted. Shippers’ point to 52 Am.Jur.2d, Sec. 45 (Malicious Prosecution) citing Kennedy v. Burbidge, 54 Utah 497, 183 P. 325, in support as saying the action requires three factors: 1) no probable cause, 2) malice, and 3) dispositive action favorable to the accuser. The principles are sound but not applicable here if the jury reasonably finds so. Shippers’ say they gave all the facts to the police and that therefore it is a police, — not a civil matter. Liability cannot so succinctly be transferred from the civil to the criminal calendar,— and we are not in agreement with Shippers’ urgence that the generalization of Restatement of Torts, 653(g), is of consequence here nor that Potter v. U. Driv-Ur-Self, 11 Utah 2d 133, 355 P.2d 714, controls under the different facts of the instant ease. Nor does the “agreement to dismiss” at arraignment solve the “finality” of the case in preventing a compensable claim but rather bolsters the claim, with the cited authority (52 Am.Jur.2d, Mal.Pros. 32, 3, 6, 7) not being apropos here. Judgment affirmed. MAUGHAN and WILKINS, JJ., concur in result. HALL, J., having disqualified himself, did not participate herein; HENRIOD, Retired J., sat.