Burdette v. Goldenberg

• Decision Date: 28 September 1920
• Docket Number: 4010.
• Citation: 104 S.E. 270,87 W.Va. 32
• Parties: BURDETTE v. GOLDENBERG.
• Court: West Virginia Supreme Court

104 S.E. 270

87 W.Va. 32

BURDETTE v. GOLDENBERG.

No. 4010.

Supreme Court of Appeals of West Virginia.

September 28, 1920

Submitted September 21, 1920.

Syllabus by the Court.

In an action for malicious prosecution, the quantum of damages is a matter peculiarly within the province of the jury, and when the evidence of such damage is conflicting, their verdict is entitled to great weight, and ordinarily should not be set aside unless the amount found is so great or small as to evince passion, prejudice, partiality, corruption, or some mistaken view of the law.

In order to take advantage of the disqualification of a juror as ground of challenge after verdict, the challenger must show not only lack of knowledge of the disqualification at the time of the examination of the jurors and before they are sworn for the trial, but that he could not have discovered its existence by the exercise of reasonable diligence.

Where the ground of disqualification is the alleged hostility of a juror, due to plaintiff's failure to return certain property belonging to him, the cause of challenge is such that plaintiff should have known of or discovered it at or before the impaneling of the jury, since he is fully acquainted with the facts out of which such hostility might arise.

Error to Circuit Court, Wood County.

Action for malicious prosecution by Sidney Burdette against K Goldenberg, doing business, etc. Verdict for plaintiff for $50 was set aside on his motion, and defendant brings error. Reversed, verdict reinstated, and judgment for plaintiff.

Reese Blizzard, R. H. Piggott, and C. M. Hanna, all of Parkersburg for plaintiff in error.

William Beard, of Parkersburg, for defendant in error.

LYNCH J.

The verdict for $50 in favor of the plaintiff in an action for malicious prosecution the trial court set aside on his motion, and defendant prosecutes this writ. The cause of action averred is the arrest of plaintiff and restraint placed upon his personal liberty by an executed warrant based upon a complaint by defendant charging the removal from Wood county to Rockland, Ohio, of certain household and kitchen furniture purchased of defendant, in part by plaintiff and his wife jointly, and in part by each of them alone, contrary to an express stipulation of a written contract signed only by her, without having paid the agreed price therefor. Concededly the contract specified by name only the goods purchased when both plaintiff and his wife were present and jointly participating. Subsequent purchases by each of them in the absence of the other were not specified therein, and could not have been, because they were bought after she signed and delivered the contract to defendant. Though literally it purported to be a rental of the property upon monthly payments, the parties referred to it upon the trial, and apparently treated it as a sale conditioned that the title should not pass to the purchasers until the consideration therefor was paid. No other construction is possible in view of their subsequent action regarding it.

When brought before the justice by the officer who executed the writ, plaintiff confessed his guilt of the offense charged against him in the complaint and warrant. Although so confessing the facts alleged against him, there was a trial before the justice and a judicial ascertainment of plaintiff's guilt, as the docket of the justice plainly shows. This proof, having some semblance of documentary evidence, plaintiff himself introduced to be considered by the jury. Having produced and submitted it for consideration by them, he cannot now be heard to complain, and indeed does not complain, of its introduction. The object, of course, was to prove an adjudication upon the question of guilt by the justice and a discharge from the prosecution. The extent to which this object was accomplished appears from the docket itself, from which we quote:

"All parties being ready for trial, proceeded to hear all the evidence offered in the case. After hearing arguments of counsel, doth find the defendant guilty. The judgment of the justice therefore is that the defendant _____. Warrant withdrawn by complainant. Complainant, K. Goldenberg, and the defendant, Sidney Burdette, having entered into an agreement, and the defendant to pay the costs. The defendant paid the costs, the case dismissed, and defendant discharged."

As disclosed by the parties themselves without a substantial discordant note, the agreement reached by them before sentence was pronounced was that the goods purchased from Goldenberg were to be returned to him, and they were so returned, or at least the greater portion of them, on the same day.

Conceding the warrant to be void, as apparently it was, because it did not charge a criminal offense within the jurisdiction of the justice, wherefore the confession of the accused did not bind him (State v. Savage, 104 S.E. 153, decided September 21), yet his restoration of the goods purchased and their redelivery to defendant in this action operated impliedly at least as a confession of wrongdoing on plaintiff's part. With this evidence before them clearly revealing an intention to avoid, if possible, the payment of a debt probably contracted in good faith, the jury may have thought $50 damages was ample compensation for the injury inflicted upon plaintiff as a result of the arrest. That it was amply sufficient was for them to determine, and they have determined it under the forms prescribed by law for that purpose.

But this court cannot, it is argued, reverse, or rather ought not reverse, the judgment of the trial court, because the trial judge saw and...