Fauver v. Wilkoske

1. Trial ? Construction of verdict. A verdict is not to be technically construed but should be given such a reasonable construction as will carry out the obvious intention of the jury, and in arriving at such intention, reference may be had to issues, instructions and evidence. 2. Malicious prosecution ? Evidence of advice of counsel admissible. In an action for malicious prosecution, evidence that the defendant acted upon advice of counsel prior to commencing the criminal action against plaintiff was under a general denial admissible as tending to negative imputation of malice. 3. Malicious prosecution ? Effect of verdict. Verdict which declared that jury found issues in action for malicious - Page 229 prosecution in favor of plaintiff and against defendant was general response to all issues submitted and a determination that plaintiff won his law suit. 4. Malicious prosecution ? Gist of malicious prosecution action. Gist of an action for malicious prosecution is want of probable cause and of malice. 5. Malicious prosecution ? Verdict implies a finding. Verdict for plaintiff in action for malicious prosecution implies a finding of want of probable cause and that jury drew from such a finding an inference of malice. 6. Malicious prosecution ? Presumption of damage. Where verdict was returned for plaintiff in action for malicious prosecution, law presumed that damage was done to and suffered by plaintiff so that he was entitled to recover therefor in money. 7. Malicious prosecution ? Exemplary damages based on finding of malice. Specific finding in action for malicious prosecution that defendant had been guilty of malice warranted award of exemplary damages. Rev. Codes 1935, 8666. 8. Malicious prosecution ? Malice may be implied. For purposes of awarding exemplary damages in action for malicious prosecution, malice in law would be implied where defendants conduct was unjustifiable. Rev. Codes 1935, 8659, 8666. 9. Trial ? Time for correcting insufficient verdict. Time for correcting an insufficient verdict is at the time it is announced in open court and before it has been accepted, ordered filed for record, and jury has been discharged from case. 10. Trial ? Reaching verdict by a motion for a new trial. After case has been submitted to the jury and a verdict has been rendered, accepted and filed at the direction of the trial court and the jury discharged from the case, the only way to reach the verdict, if insufficient and not covering the issues submitted, or if it is against the law, is by a timely and proper motion for a new trial based upon such grounds. 11. Judgment ? Motion for judgment notwithstanding verdict not proper in Montana. It is neither proper nor permissible to move for judgment notwithstanding the verdict in Montana. 12. Malicious prosecution ? Submission of case to jury on question of exemplary damages. Where actual damages were shown, though testimony was insufficient to show its money extent, thus entitling plaintiff in action for malicious prosecution to no more than nominal damages, plaintiff was nevertheless entitled to have cause submitted to jury on question of exemplary damages pleaded by him. 13. Trial ? Court erred in disregarding jurys findings and verdict. Where plaintiff established his right to actual damages in action for malicious prosecution, fact that jury, inadvertently failed to separately assess actual damages shown by uncontradicted evidence, did not warrant trial court in disregarding jurys findings and verdict.