Opinion
Docket No. 72925.
Decided June 18, 1985. Leave to appeal granted, 422 Mich. 973.
Lakin, Worsham Victor, P.C. (by Larry A. Smith), for plaintiff.
Wilson, Portnoy Leader, P.C. (by Robert P. Roth), for defendant.
Before: BRONSON, P.J., and J.H. GILLIS and ALLEN, JJ.
Plaintiff brought suit against S.S. Kresge Company in the Oakland County Circuit Court, alleging malicious prosecution, false arrest and false imprisonment. The case was remanded to the 48th District Court due to the lack of the necessary jurisdictional amount.
During trial in district court, plaintiff dropped his claims for false arrest and false imprisonment, and the case went to the jury on the malicious prosecution claim only. The jury returned a verdict for plaintiff in the amount of $7,500, which the trial court trebled pursuant to MCL 600.2907; MSA 27A.2907.
Defendant appealed to the Oakland County Circuit Court and, in an opinion dated February 25, 1983, the court vacated the judgment and remanded for a new trial or, in the alternative and at plaintiff's option, entry of a judgment in the amount of $7,500. Plaintiff's motion for rehearing was denied and plaintiff sought leave to appeal to this Court. Leave to appeal was granted in March, 1984.
Plaintiff argues that the circuit court erred in vacating the judgment for treble damages entered by the district court. The district court trebled the verdict pursuant to MCL 600.2907; MSA 27A.2907 which states:
"Every person who shall, for vexation and trouble or maliciously, cause or procure any other to be arrested, attached, or in any way proceeded against, by any process or civil or criminal action, or in any other manner prescribed by law, to answer to the suit or prosecution of any person, without the consent of such person, or where there is no such person known, shall be liable to the person so arrested, attached or proceeded against, in treble the amount of the damages and expenses which, by any verdict, shall be found to have been sustained and incurred by him * * *."
This issue presents a split of authority among the panels of this Court. Compare Pauley v Hall, 124 Mich. App. 255, 268-270; 335 N.W.2d 197 (1983), lv den 418 Mich. 870 (1983); Rivers v Ex-Cell-O Corp, 100 Mich. App. 824, 838-840; 300 N.W.2d 420 (1980), with Zmija v Baron, 119 Mich. App. 524, 541-544; 326 N.W.2d 908 (1982); LaLone v Rashid, 34 Mich. App. 193, 199-204; 191 N.W.2d 98 (1971), lv den 386 Mich. 756 (1971). See, also, King v General Motors Corp, 136 Mich. App. 301, 305-306; 356 N.W.2d 626 (1984). In essence, the disagreement centers on the perceived purpose of the statute authorizing treble damages, and whether the statute is intended to compensate plaintiff or punish defendant. Pauley, supra, p 269.
In LaLone, supra, this Court held that a plaintiff in a malicious prosecution suit must either submit the issue of "exemplary damages" to the jury or elect under the malicious prosecution statute to submit only "actual damages" to the jury and then have the trial court treble the verdict. An election to proceed under the statute must be made before the case is submitted to the jury.
Exemplary damages were used to supply a remedy for mental injury not otherwise recognized. As the Supreme Court stated in Veselenak v Smith, 414 Mich. 567, 573-574; 327 N.W.2d 261 (1982):
"A close reading of the early exemplary damages cases also suggests that these unusual damages may have been used to supply a remedy for mental injury not otherwise recognized. Actual damages compensated for economic loss, but not for non-economic loss. In addition, the award of actual damages seemed to preclude the award of additional compensation for noneconomic loss. Warren v Cole, 15 Mich. 265 (1867); Hyatt v Adams, 16 Mich. 180 (1867). Assuming actual damages were not provable but mental injury certain, exemplary damages became available to compensate the injured party. Fay v Swan, 44 Mich. 544; 7 N.W. 215 (1880).
"As proof of actual damages is no longer a bar to the award of exemplary damages, so too actual damages, where properly pled, now include compensation for shame, mortification, mental pain and anxiety, Beath v Rapid R Co, 119 Mich. 512; 78 N.W. 537 (1899), and for annoyance, discomfiture, and humiliation, Grenawalt v Nyhuis, 335 Mich. 76; 55 N.W.2d 736 (1952). In short, actual damages now include compensation for mental distress and anguish." (Footnote omitted; emphasis added.)
As actual damages now include compensation for what was formerly available only as exemplary damages, those cases which hold that MCL 600.2907; MSA 27A.2907 is intended only to compensate the plaintiff view trebling the damages as impermissible double recovery. As stated by former Judge BASHARA in his dissenting opinion in Rivers, supra, pp 842-843, and adopted by the Court in Zmija, supra, p 543:
"`By allowing a trebling of the jury verdicts pursuant to the statute, two enhancements of the damages awards would be permitted plaintiffs on what, in effect, is the same policy consideration. The jury would be allowed to enhance the verdict based on the vague concept of injured feelings due to defendant's outrageous conduct. Plaintiffs would also receive a second enhancement pursuant to the statute which presumably expresses the legislative determination that a defendant should be punished for its outrageous conduct in a malicious prosecution action. Damages should bear some relationship to the harm actually committed and not be totally arbitrary, even where defendant has engaged in the most vile type of conduct.'"
The opposite view, as expressed in Pauley, supra, pp 269-270, regards the statute as intending to punish defendant's malicious conduct. As expressed by Judge (now Justice) M.F. CAVANAGH:
"However, unlike the Court in Zmija, supra, we do not conclude that permitting a plaintiff who has recovered damages for mental anguish as part of his or her actual damages in a malicious prosecution case to have the award trebled under MCL 600.2907; MSA 27A.2907 results in enhancing the award with exemplary damages. A close reading of the statute convinces us that its intent is to punish the defendant in a malicious prosecution action, not to compensate the plaintiff. * * *
* * *
"Therefore, a trebling under this statute of an award of actual damages to a plaintiff in a malicious prosecution case does not result in an impermissible double compensation recovery for the plaintiff." (Emphasis in original.)
We believe that the view expressed in Pauley, supra, is correct, and, therefore, we reverse the judgment of the circuit court and reinstate the judgment entered by the district court. The plain language of the statute refers to the defendant's liability in a malicious prosecution suit and does not refer to plaintiff's compensation. Further, the statute does not distinguish between actual and exemplary damages, and merely directs the court to "treble the amount of the damages and expenses which, by any verdict, shall be found to have been sustained and incurred". (Emphasis added.) In addition, we recognize that mental anguish, humiliation and embarrassment are the principal injuries suffered by a plaintiff in a malicious prosecution suit. It is the very rare malicious prosecution claim which includes the physically manifested injuries common to most personal injury suits. If, as former Judge BASHARA claimed, the only award which may be trebled is an award which is completely devoid of mental anguish damages, we do not believe this would be adequate compensation. If there are no physical injuries, the jury could not award any damages. A negligible jury award, even one that is trebled according to the statute, remains negligible. Even were we to agree that the primary purpose of the statute is to compensate, such a narrow view of what damages may be submitted to the jury would defeat the statute's compensatory purpose.
Defendant cross appeals, arguing that it was denied an impartial jury and that plaintiff failed to prove every element of his claim. We have thoroughly reviewed all of defendant's arguments and believe them to be without merit.
The judgment of the circuit court is reversed and the judgment for treble damages entered by the district court is reinstated.