Black v. Canadian Pac. Ry.

• Decision Date: 27 November 1914
• Citation: 218 F. 239
• Parties: BLACK v. CANADIAN PAC. RY.
• Court: U.S. District Court — Western District of New York

218 F. 239

BLACK v. CANADIAN PAC. RY.

United States District Court, W.D. New York.

November 27, 1914

George Clinton, Jr., of Buffalo, N.Y., for the motion.

Joseph Wechter, of Buffalo, N.Y., opposed.

MAYER District Judge.

The action is for malicious prosecution, and the jury has rendered a verdict in favor of the plaintiff for the sum of $25,000. At the conclusion of the trial a motion was made to set aside the verdict on several grounds, and has been disposed of, except in respect of the question as to whether the verdict is excessive. I have not the transcript of the testimony, but from my own minutes I think I can set forth an outline of the facts as they must be assumed to have been found by the jury. Indeed, there was practically no controversy as to the important facts, and the differences in the testimony were merely as to certain details.

Black obtained employment from the defendant in the fall of 1911 as a station agent at Wycliffe in the Canadian Northwest. His salary and commissions amounted to between $90 and $100 monthly. He was the sole person there in charge, and, in addition to the customary duties of an agent selling transportation tickets, he had charge of incoming and outgoing freight, also of the business of the Dominion Express Company, was responsible for three flag stations received and transmitted the contents of telegrams by telephone to the telegraph office, was required to keep certain records in connection with a mine, and to perform certain duties in relation to freights of lumber from a lumber company, which made shipments over the line, and which sometimes, as the evidence shows, remitted direct to the head office of defendant at Montreal.

For a period of time during his incumbency Black had difficulty in obtaining the necessary stationery upon which to make his records, and for a time, at the beginning of his employment he was compelled to carry the money received by him on his person, because defendant had not furnished him with a safe. It was his duty to make out certain reports on forms somewhat extensive in detail. Some of these reports were required to go forward on the 7th, 14th, 21st, and last day of each month, and were known as weekly reports, and were to be accompanied with such cash and checks as came into his hands. His monthly reports were a resume of the business of the month, and were copied in impression copy books given to him for that purpose.

In detail the reports contained, not only those items which had to do with the collection of money, either in currency or checks, but also with certain purely record or bookkeeping entries, such as entries in regard to freight of the railroad, consisting of its own material. It was established beyond question that the only accurate method of ascertaining the correctness of the reports of Black was to check up his weekly reports, and check up in connection therewith on his actual receipt of moneys, and to take into account in any calculation those items where no money passed through his hands, and which related solely to bookkeeping or record entries.

In March, 1912, Black obtained a leave of absence for the purpose of attending the funeral of his father. He later returned, and on or about October 10, 1912, requested a leave of absence in order to enable him to visit his mother in Buffalo; it being believed that she was critically ill at that time. Under date of November 15, 1912, he communicated in writing with his superintendent, stating that he was delayed on account of illness, and in due course received his pay check for the month of October. In this communication he stated his correct address, and, having thereafter moved, he gave his new and correct address when he returned the receipted voucher for his pay. He decided not to return to the employ of the defendant, and obtained employment in Buffalo, and on and for some time prior to August 11, 1913, was employed at the Pierce Motor Works in that city.

On or about July 17, 1913, the index finger of his left hand was taken off in an accident at the motor works, and at the times hereinafter referred to the wound was still healing and required attention. On August 11, 1913, he was arrested at the Pierce Motor Works by a detective of the Buffalo police force, who was accompanied by one Cadieux, a detective of the defendant, on the charge that he was a fugitive from justice. The warrant obtained from the Buffalo court was based on appropriate papers, which, in effect, set forth that Black was charged with the larceny of $334.02 from the defendant company, that a warrant had issued from the appropriate county court in Canada, and that Black had fled the jurisdiction.

Black was then taken to the jail in Buffalo, where he remained until August 16th. When arrested he protested his innocence, and insisted that his accounts were right, but that, if there was any error, such error was due to inadvertence. He retained an attorney, and certain interviews and negotiations took place between his attorney, himself, and his sister on the one hand, and Cadieux and counsel for defendant on the other, although all of these parties were not present at all of these interviews.

It is insisted on behalf of Black that his sister offered to deposit the amount of his alleged defalcation in any bank in Buffalo named by defendant, pending a re-examination of his accounts. Defendant gave another version of the conversations in this respect, but apparently the jury concluded that the version testified to on behalf of Black was correct. As this offer was not accepted, the negotiations finally resulted in the following arrangement:

The proceeding in Buffalo was to be dismissed; Black was to go voluntarily and without process to Cranbrook, some 2,400 miles away, the county seat at which Judge Thompson of the Canadian court had issued his warrant, and there go over his accounts; throughout the journey Black was to be treated as a free man, and, according to his account, was to sleep in a sleeping car, and have his meals in a dining car, and, in a word, to be treated as an ordinary passenger; in addition he was to have medical treatment if the condition of his hand required; and the testimony of himself and his witnesses to the whole agreement is corroborated in every substantial particular by Cadieux. Cadieux, who seemed to be a well-mannered and kindly disposed man, had stated that he would accompany Black from Buffalo to Cranbrook.

It appeared, however, from a letter received in evidence toward the end of the trial, that this agreement was not intended to be carried out, for Cadieux had written to his chief (the head of the detective department of the railway), after the arrangement was made, detailing the situation and stating in substance, or by fair inference, that he would get Black to Canada and then that Black could be placed under restraint. The evidence fully warranted the conclusion that Black was to be tricked across the border on a promise which was to be broken.

It is hardly necessary to add that this scheme of deception was not made known to the reputable counsel who represented defendant in the matter.

On August 16, 1913, Cadieux and Black started for Toronto Canada, and during that trip Black was not subjected to any physical inconvenience; but on arrival at Toronto, and in plain violation of the agreement, Black was thrust into the jail at the police station, confined there in a cell until the evening of August 19th, and during that time...