Opinion
Rehearing Denied June 27, 1972.
Page 159
Frickey, Cairns & Wylder, P.C., Richard H. Cairns, Earl S. Wylder, Denver, for plaintiffs-appellees.
Robert, w. Caddes, Denver, for defendant-appellant.
ENOCH, Judge.
This is a malicious prosecution case. Defendant-appellant, Metropolitan National Bank, will be referred to as bank and plaintiffs-appellees, Hazel Monahan and Mario Rivera, will be referred to as plaintiffs or by name. Trial was to a jury. At the conclusion of plaintiffs' case, the bank rested without putting on any evidence. The trial court then directed a verdict in plaintiffs' favor on all issues except whether the bank's civil action against the plaintiffs had been motivated by malice and the question of damages. The jury found in favor of plaintiffs and awarded each actual damages of $10,000 and exemplary damages of $5,000.
The background of this controversy is as follows: In May 1965, Brighton Chrysler Plymouth, Inc. transferred several promissory notes to the Metropolitan National Bank. Included were two notes, one bearing the signature, 'Hazel Monahan', and the other bearing the signature, 'M. Rivera.' In June 1965, Hazel Monahan was requested by the bank to examine the note purportedly signed by her and after she had examined it, she signed an affidavit that the signature was not hers. Subsequently, the bank hired a handwriting expert to examine the signature on the note and samples of Hazel Monahan's handwriting. The opinion rendered by this expert was that the signature on the note was a forgery.
In June 1966, the bank filed a complaint on several promissory notes against numerous defendants including Monahan and Rivera. After Rivera was served, he went to the bank and, after viewing his alleged signature, gave an affidavit that the signature was not his. Rivera, upon the bank's request, also supplied samples of his signature and the bank had an expert compare them to the signature on the note. The expert's opinion was, again, that the signature on the note was a forgery. The suit instituted by the bank was tried in February 1968, and resulted in dismissal as to Monahan and Rivera. This present malicious prosecution suit was instituted thereafter.
Several of the bank's allegations of error relate to the existence of sufficiency of the plaintiffs' evidence. We find no merit in any of these arguments insofar as they relate to whether plaintiffs established defendant's liability. To the contrary, plaintiffs presented more than sufficient evidence to justify the trial court's denial of the bank's motion for a summary judgment and directed verdict. See Gross v. Appelgren, 171 Colo. 7, 467 P.2d 789; Konas Stores v. Red Owl Stores, Inc., 158 Colo. 29, 404 P.2d 546. Plaintiffs' evidence was also sufficient to justify the trial court's instructing the jury that the bank had lacked probable cause for instituting the suit against Monahan and continuing it against Rivera and that the plaintiffs had suffered damages as a result of that prosecution. The evidence concerning probable cause and the existence of damages was uncontroverted and, as such, it was the trial court's duty to determine these issues as a matter of law. We also find, contrary to the bank's allegation, that there was sufficient evidence to support the jury's finding of malice. Lounder v. Jacobs, 119 Colo. 511, 205 P.2d 236.
We have concluded, however, that the evidence in the record is insufficient to support the amount of actual damages assessed by the jury. The only special damages proved by Hazel Monahan were attorney's fees of $1,250. Her testimony concerning other damages was that she was 63 years of age; that she had never been sued before; and that she had never retained a lawyer before. She said that the suit upset her 'terribly', that this emotional upset made it more difficult for her to work, and that she had difficulty sleeping.
The items of special damages proved by Rivera were attorney's fees of $750, costs of $10, and loss of eight hours work at $3.30 per hour. He testified that he had never been sued before, that he was upset when he was served with the summons, that he worried about the outcome of the suit and that he worried about paying his attorney's fees.
Each plaintiff was awarded $10,000 in actual damages. The evidence of damages does not support so large an award to either plaintiff, and it is quite obvious that if the jurors had considered the evidence and the instructions, they could not have found that both plaintiffs sustained identical amounts of actual damage. Where, as here, the actual damages awarded are so obviously disproportionate to the actual damages sustained, we are compelled to conclude, 'that the jury must have been influenced by partiality or prejudice, or were misled by some mistaken view of the merits of the case.' Ark Valley Alfalfa Mills, Inc. v. Day, 128 Colo. 436, 263 P.2d 815.
We have examined the bank's other allegations of error and find them to be without merit.
Since this case is being remanded for redetermination of actual damages, the jury must also redetermine the exemplary damages to be awarded.
Judgment reversed and cause remanded for a new trial on the issue of actual and exemplary damages only.
SILVERSTEIN, C.J., and DWYER, J., concur.