Brooking v. Lemon
| Decision Date | 21 May 1953 |
| Docket Number | No. 1309.,1309. |
| Parties | BROOKING v. LEMON. |
| Court | D.C. Court of Appeals |
Thomas A. Church, Washington, D. C., with whom Thurman L. Dodson, Washington, D. C., was on the brief, for appellant.
Milton Conn, Washington, D. C., with whom Denis K. Lane, Washington, D. C., was on the brief, for appellee.
Before CAYTON, Chief Judge, and HOOD and QUINN, Associate Judges.
The question is whether there was sufficient evidence to justify submission to the jury, in a suit claiming damages for the malicious prosecution of two landlord-tenant actions.
Plaintiff in this suit had for many years been in possession of two rooms in a rooming house. Defendant took over the lease of the premises and management of the building, including a poolroom therein. Plaintiff had worked in the poolroom and defendant continued him in this employment, paying him partly in cash and partly by credit on room rent.
After several years landlord served on the tenant a notice to quit and followed this with a suit demanding possession based on the claim that he required the rooms for his own use and occupation as a dwelling.1 After the case was partially tried landlord submitted to a nonsuit. Fourteen months later a new notice to quit was served on the tenant, based on the ground that the District Government had ordered him to reduce the number of occupants in the building "before his tenement license can be renewed." After the expiration of the notice landlord filed a second suit demanding possession on the grounds just mentioned in the notice to quit. After a trial the court ordered finding and judgment for defendant-tenant.
Tenant then brought the present action against the landlord, charging that the two landlord-tenant suits had been brought maliciously, without just cause, and in bad faith. He claimed damages for the expense of defending the two suits and for "mental anguish during the dependency of both of these suits due to the threatened loss of his home in crowded Washington, D. C." At the close of the evidence defendant-landlord moved for an instructed verdict and this was denied. The jury awarded plaintiff $250 compensatory and $500 punitive damages. Defendant's motion to set aside the verdict was overruled and this appeal followed.
It being settled in this jurisdiction "that one who twice sues another maliciously and without probable cause is responsible to him in damages," Soffos v. Eaton, 80 U. S.App.D.C. 306, 152 F.2d 682, 683, we proceed to examine the three basic contentions on which the appeal must turn.
1. We do not agree with appellant that there was a failure to prove actionable damages. In Soffos v. Eaton, supra, it was ruled that the expense of defending suits and the mental anguish caused by threatened loss of a home are proper elements of damage in this type of case. This test was met by plaintiff. He testified that he had paid counsel fees of $100 in defending the two suits and "that in his diabetic condition he was scary and nervous because he didn't know what to do." This was sufficient to justify a verdict for compensatory damages. The award of punitive damages was not challenged in the trial court, and we have no basis for disturbing it.
2. Appellant says there was no sufficient showing of malice to take the case to the jury. With this we disagree. There was testimony in behalf of tenant-plaintiff as to certain conversations with and statements by the landlord (not necessary to be repeated here) from which the jury could have found express and active malice on the part of the landlord, or from which it could at least have inferred malice. (We do not overlook appellant's disavowal of all malicious intent or the admitted fact that not long before the second suit, while the tenant was in a hospital, appellant loaned him money.) Under all the circumstances the question of malice was clearly one for the jury.
3. Appellant contends that he was entitled to an instructed verdict because probable cause was established as a matter of law. The record does not show that this was presented as a specific ground for the motion for directed verdict; nor was probable cause mentioned in the motion to set aside the jury's verdict. The argument advanced in this court is that by the testimony as to advice of counsel the question of probable cause was taken out of the realm of factual dispute and should have been taken from the jury. Appellant testified that before commencing the first suit he consulted an attorney and "after explaining fully the circumstances to his attorney" the possessory action was filed. His testimony was the same concerning the second suit, as to which he consulted and engaged another attorney. Did this without more entitle him to a directed verdict?
That probable cause is a mixed question of law and fact was held in the early case of Staples v. Johnson, 25 App.D.C....
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...U.S. 389, 54 S.Ct. 223, 78 L.Ed. 381 (1933); Slaughter v. District of Columbia, D.C.Mun.App., 134 A.2d 338 (1957). 9. Brooking v. Lemon, D.C.Mun.App., 96 A.2d 849 (1953). The definition of probable cause in Virginia has been briefly stated thusly as cited with approval from Virginia R. & P.......
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