Fendrich v. Lauck

307 N.W.2d 607, 1981 S.D. LEXIS 300

Opinions

WOLLMAN, Chief Justice.

Appellants brought suit against appellees alleging two causes of action, malicious prosecution and libel. Appellants appeal from the trial court’s entry of summary judgment in favor of appellees on both causes of action.

Footnotes

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* We affirm in part, reverse in part, and remand.

I

Malicious Prosecution

George Fendrich (appellant Gary Fend-rich’s uncle) owned certain farm property that appellee Robert Lauck had farmed under an oral lease since 1970. In the fall of 1978, Gary Fendrich expressed an interest in renting this property and was informed by George Fendrich that he could do so. Although the two men apparently realized that Lauck’s lease had not yet expired, they decided that the land needed to be fall plowed. On August 29, 1978, the two men went to plow the property even though neither of them had received Robert Lauck’s permission to do so. Upon arrival, however, Lauck would not permit them to plow because he wanted his cattle to graze on the stubble.

About a week later Gary Fendrich entered onto the property at approximately 10:30 p. m. without Lauck’s permission and plowed some twelve to fourteen acres. He testified that he did so knowing that Lauck’s lease ran until March 1 of the following year.

Upon discovering that part of the land had been plowed and that the locked wire gate providing access to the field had been torn down, Lauck signed a complaint for criminal trespass against Gary Fendrich, apparently after discussing the facts with the State’s Attorney. The case against Fendrich went to trial, and he was found not guilty.

Appellants’ complaint alleges that when Robert Lauck signed the criminal complaint he knew or should have known that the charge was false, groundless and without basis in law or fact and that his signing the complaint was therefore a willful and malicious act. The trial court found that no genuine issue of fact existed and held that Robert Lauck had probable cause to sign the complaint.

The absence of probable cause in commencing an original criminal proceeding is an element of malicious prosecution. Kunz v. Johnson, 74 S.D. 577, 57 N.W.2d 116 (1953). We recently stated that “[i]n cases with undisputed or admitted facts, the question of probable cause is one entirely for the court to determine, but if the facts are in conflict and reasonable minds could reach different conclusions, it is for the jury’s determination after proper instruction by the court.” Bucher v. Staley, 297 N.W.2d 802, 805 (S.D.1980). Here, it was undisputed that Lauck’s lease to the property had not yet expired and that Gary Fend-rich nevertheless plowed part of the land without Lauck’s permission, knowing that Lauck did not want it plowed. It is also apparent that George Fendrich, the lessor, did not have the authority to allow Gary Fendrich to plow the land without Lauck’s permission.

We hold that the trial court did not err in granting summary judgment for appellees. The undisputed facts show that Lauck had probable cause to sign a criminal complaint.

II

Libel

The libel action is the result of an unrelated incident in which a handprinted letter was mailed to the McCook County Sheriff on or about October 11, 1976. This letter read as follows:

Did you check out Diane and Gary Fendrich for the robbery at P.A. [Pleasant Acres] Cafe?

Dorothy Lauck stated in her deposition that she did not know that there had been a robbery (actually a burglary) at the Pleasant Acres Cafe and denied writing the letter; appellants contend that they can prove that she authored the letter.

The trial court granted summary judgment and dismissed appellants’ libel action on the following grounds:

1. That the statement upon which this cause of action is based is not libelous per se;

2. That the publication as published constitutes a qualified privilege;

3. That there are no facts to support a showing of actual malice, express or in fact[.]

Appellants contend that the trial court improperly granted summary judgment. We agree.

SDCL 20-11-5 provides in pertinent part:

A privileged communication is one made:

(3) In a communication, without malice, to a person interested therein, by one who is also interested, or by one who stands in such relation to the person interested as to afford a reasonable ground for supposing the motive for the communication innocent, or who is requested by the person interested to give the information;

In the cases provided for in subdivisions (3) ... of this section, malice is not inferred from the communication or publication.

SDCL 20-11-3 provides:

Libel is a false and unprivileged publication by writing, printing, picture, effigy, or other fixed representation to the eye which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation.

We conclude that the statement contained in the letter is libelous per se. Broking v. Phoenix Newspapers, 76 Ariz. 334, 264 P.2d 413 (1953); Walker v. Kansas City Star Company, 406 S.W.2d 44 (Mo.1966); 50 Am.Jur.2d Libel and Slander § 11 (1970). See also Niblo v. Ede, 35 S.D. 359, 152 N.W. 284 (1915); Sherin v. Eastwood, 27 S.D. 312, 131 N.W. 287 (1911).

There remains the question whether appellants made an adequate showing to raise a genuine issue of fact on the question of malice. See Uken v. Sloat, 296 N.W.2d 540 (S.D.1980); Wollman v. Graff, 287 N.W.2d 104 (S.D.1980). We hold that they did. Dorothy Lauck’s denial of any knowledge of the fact of the alleged crime would itself be evidence of malice if it is later established that she authored the letter, inasmuch as she would hardly be in a position at trial to claim that she had a good faith belief that appellants were involved in the incident.

For the foregoing reasons, the trial court should not have entered summary judgment. Wilson v. Great Northern Railway Company, 83 S.D. 207, 157 N.W.2d 19 (1968).

The entry of summary judgment in the malicious prosecution cause of action is affirmed. The entry of summary judgment in the libel cause of action is reversed, and the case is remanded to the circuit court for trial on that issue.

DUNN and FOSHEIM, JJ., concur. MORGAN, J., concurs specially. HENDERSON, J., concurs in part and dissents in part.

By stipulation of counsel, Dorothy Lauck has been dismissed as a defendant in the malicious prosecution count, and Robert Lauck has been dismissed as a defendant in the libel count.