On appeal from Superior Court, Law Division, Essex County.
Lynch, Bischoff and Kole. The opinion of the court was delivered by Kole, J.A.D.
The complaint in this action by plaintiff Williams alleged that defendants Solon Page (Solon) and Willie Jean Page (Willie Jean), had conspired to defame and prosecute him and had maliciously prosecuted him; that Solon deliberately perjured himself with resulting damage to Williams, that defendants' actions violated Williams' civil rights, that defendants slandered Williams and that Solon committed an assault and battery against Williams and threatened his life. Solon filed an answer. No answer was filed by Willie Jean. Almost two years before the trial Williams' attorney entered a default against Willie Jean.
When the trial began both defendants appeared. Solon was then represented by counsel; Willie Jean was not. The judge informed Willie Jean that she was in default. She stated that her attorney had lost her file and had told her that it was "too late." The judge agreed that it was "too late" and advised her that she would have to "settle at some later time."*fn1
At the end of the jury trial in this matter the only issues to be determined were the following:
1. Were defendants Solon and Willie Jean liable for malicious prosecution of plaintiff Williams in connection with an indictment returned against Williams charging him with a verbal threat to kill Solon and an assault with a pistol
with intent to kill Solon (hereafter "the Halloween night incident")?
2. Was Solon liable to Williams for malicious prosecution by his having filed a complaint charging Williams with an assault by waving a gun at Solon (hereafter "the second malicious prosecution incident")? This charge apparently led to a search of Williams in the corridor of the courthouse during the course of divorce proceedings between Williams and Willie Jean, his then wife.
3. Was Solon liable to Williams for an assault and battery which occurred during the Halloween night incident?
4. What amount of compensatory or punitive damges should be awarded Williams against Solon or Willie Jean by reason of any such liability?
Despite the default entered against Willie Jean and the fact that she was not represented at trial by counsel, the judge submitted to the jury the question of whether both defendants were liable for maliciously prosecuting Williams. He also instructed the jury to decide whether defendant Solon alone was liable for committing an assault and battery against Williams and for the second malicious prosecution incident. The jury was further charged as to the principles relating to an award of compensatory and punitive damages in the event liability were found.
The jury returned a verdict of $20,000 in compensatory damages against both defendants for malicious prosecution and $10,000 in compensatory damages against Solon for the assault and battery. It did not indicate whether its verdict on the malicious prosecution claim was predicated on the Halloween night incident or on both that and the second malicious prosecution incident for which only Solon could possibly be held liable. The jury also awarded $5,000 in punitive damages against Solon and Willie Jean for both the malicious prosecution and assault and battery claims, but did not specify how much of that amount was attributable to each claim or what portion thereof each defendant was required to pay.
Solon alone moved for a new trial on the ground that the verdict was excessive and against the weight of the evidence. The judge, after argument, denied the motion for a new trial predicated on the weight of the evidence contention, but entered an order directing that the verdict on the malicious prosecution claim be reduced to $10,000 and that on the assault and battery claim be reduced to $5,000. The $5,000 punitive damage award was not disturbed. Williams filed a written consent to such reduction.
Both defendants appealed. Williams cross-appealed from the order granting the remittitur with respect to damages.
On this appeal defendants contend that (1) the judgment against Willie Jean should be set aside because there was no evidence to show that she had maliciously prosecuted Williams, and (2) the verdict on the malicious prosecution claim entered against Solon was without basis in the evidence because plaintiff failed to prove the requisite malice and absence of probable cause.
Although he did not allege separate occurrences in his complaint (R. 1:4-2), at trial Williams proved two distinct instances of alleged malicious prosecution.
The first arose on Halloween night, 1973. Williams had struggled with defendant Solon after he had arrived, uninvited, at or after midnight, at the home of his estranged wife, defendant Willie Jean. Under Williams' version of the facts, Williams had taken a gun from Solon and shot it. Solon claimed that Williams brought the gun into the house with him. Solon instituted proceedings against Williams for assault with intent to kill Solon and threatening by speech to take his life. As a result an indictment was returned against Williams.
As to the second alleged malicious prosecution, Solon filed a complaint charging that Williams had waved a gun at him while driving by him in his car. Williams denied that this event ever occurred. The jury could reasonably have found on the proofs that this complaint was dismissed when
Solon failed to appear in court, despite Solon's claim that he never received notice to appear.
Malicious Prosecution Predicated on the Indictment
Malicious prosecution is not a favored cause of action and seeks to grant relief against "one who recklessly institutes criminal proceedings without any reasonable basis * * *." Lind v. Schmid , 67 N.J. 255, 262 (1975). If plaintiff fails to prove any one of the following elements, his malicious prosecution action must fail: (1) that the criminal action was instituted by defendant against plaintiff; (2) that it was actuated by malice; (3) that there was an absence of probable cause for the proceeding, and (4) that it terminated favorably to plaintiff. Each element is separate from the others, although evidence of one may be relevant with respect to another. Lind v. Schmid, supra. Even though the essence of the cause of action is lack of probable cause, Lind v. Schmid, supra , of equal importance is whether ...