Baldwin v. Hutchison
| Decision Date | 12 December 1893 |
| Docket Number | 797 |
| Citation | 35 N.E. 711,8 Ind.App. 454 |
| Parties | BALDWIN v. HUTCHISON |
| Court | Indiana Appellate Court |
From the Montgomery Circuit Court.
Judgment affirmed.
G. W Paul and M. W. Bruner, for appellant.
B Crane and A. B. Anderson, for appellee.
OPINION
The appellee's complaint was in two paragraphs, each of which was attacked by demurrer. The special verdict of the jury clearly shows that the judgment is founded upon the second paragraph of complaint. It is therefore unnecessary for us to consider the sufficiency of the first paragraph, since, if the second is good, any error in overruling a demurrer to the first will be deemed harmless. Elliott's App. Proced., section 637; Doan v. Dow, 8 Ind.App. 324, 35 N.E. 709.
By the second paragraph of complaint the following state of facts is shown:
Appellee was regularly subpoenaed and testified as a witness in the trial of a cause to which appellant was a party. In response to the questions asked him, appellee stated that the character of appellant's witness, his son, was bad for truth and veracity. In response to questions asked by appellant's counsel, he also testified, on cross-examination, that he had heard that he had stolen a sheep, and that he had heard one Elstun Sayers and his wife say so. All of these answers were made in good faith, without any malice, and in the belief that they were true. Appellee had, in fact, heard it said that said Baldwin had stolen a sheep, and it was his recollection that he had heard it from Sayers and wife. On the next day, after dark, appellant came to appellee's house in a buggy and waited outside while one McComas came into the house and told appellee that the Baldwins were very mad over his testimony, and had been to see the Sayers, who denied having made the statement, and that appellant would send appellee to the penitentiary, and put him behind the bars, and cause him to lose his farm unless he fixed the matter up satisfactorily; that it would take from $ 3,000 to $ 5,000 to fix it up. McComas advised appellee to go out and talk to appellant, and fix it up. Appellee went out and talked with appellant, who told him if he didn't fix the matter up and pay him a large sum of money, appellant would send him to the penitentiary, put him behind the bars, and cause him to lose his farm, and informed appellee that he could have nutil seven o'clock next morning to decide. Next morning the appellant came at seven and renewed his threats, and demanded $ 1,000. Appellee was a farmer, who had always lived on his farm, and a person of weak mind, of little education and experience in business affairs, ignorant of the law and of his rights and liabilities as a witness, easily influenced and overcome by a person of strong mind; all of which was known to appellant, who was a shrewd and keen business man of more than ordinary skill and ability, of wide experience in business and ways of the world, and known to appellee to be a man of force and determination. Appellee believed that appellant could and would carry out his said threats, and was thereby put in fear of appellant, and by reason thereof, and against his will, and upon the appellant's promise not to prosecute nor molest him on account of said testimony, he paid him the sum of $ 900, which he seeks to recover.
Upon these facts, there was clearly no consideration for the payment of this money. Neither the appellant nor his son had against appellee even a colorable claim of any kind whatsoever, arising from the testimony which he had given in good faith, without malice, believing it to be true, and which was responsive to questions by appellant's attorneys; nor had any crime been committed by appellee.
His statements, as a witness, under the circumstances, were absolutely privileged. Hutchinson v. Lewis, 75 Ind. 55; Townshend on Libel and Slander, section 223; Nelson v. Robe, 6 Blackf. 204; Grove v. Brandenburg, 7 Blackf. 234; 1 Hilliard on Torts, 86; Cooley on Torts, 210; Calkins v. Sumner, 13 Wis. 193.
In Stevens v. Rowe, 59 N.H. 578, it is said: "Public policy, and the safe administration of justice, require that witnesses, who are a necessary part of the judicial machinery, be privileged against any restraint, excepting that imposed by the penalty for perjury."
In United States, etc., Co. v. Henderson, 111 Ind. 24, 12 N.E. 88, the court approves this language, used in Warey v. Forst, 102 Ind. 205, 26 N.E. 87: "A threatened litigation founded merely on the defendant's belief, without any fact to support the belief, amounts to nothing, and the purpose to avoid such a litigation was no consideration for the plaintiff's promises." Jarvis v. Sutton, 3 Ind. 289; Smith v. Boruff, 75 Ind. 412; Harris v. Cassady, 107 Ind. 158, 8 N.E. 29.
Counsel for appellant vigorously contend that the payment was a voluntary one, and the money not recoverable, for that reason. With this proposition we can not agree.
Under the allegations of the pleading, the payment was not made by appellee of his own volition, but against his will, and because he was controlled by and overpowered with fear.
In Bush v. Brown, 49 Ind. 573, the law is thus expressed: " To give validity to a contract, the law requires the free assent of the party who is to become chargeable thereon; and it therefore avoids any promise extorted from him by terror or violence."
It is decided, by this case, that threats of prosecution and imprisonment upon an unfounded charge are such duress as avoids the contract.
"So, if a person executed an instrument from a well-grounded fear of illegal imprisonment, he may avoid it on the ground of duress." Walker v. Larkin, 127 Ind. 100, 26 N.E. 684.
Counsel for appellant argue that the threats were not sufficient to constitute duress, because not of such character as should have reasonably excited the fears actually caused, and cite Hines v. Board, etc., 93 Ind. 266, and Darling v. Hines, 5 Ind.App. 319, 32 N.E. 109.
The case in hand is easily distinguished from those, by the fact that appellee was a man of weak mind, ignorant of the law and his rights, as was actually known to appellant. The threats made unquestionably did excite the fear and belief that appellant could and would carry them out.
It comes with an ill grace from appellant to say that appellee ought not to have been so badly scared.
We deem the law to have been well stated by MORSE, Judge, in the case of Cribbs v Sowle, 87 Mich. 340, 49 N.W....
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