Cabakov v. Thatcher

• Decision Date: 10 October 1955
• Docket Number: No. A--400,A--400
• Citation: 117 A.2d 298,37 N.J.Super. 249
• Parties: Abraham CABAKOV, Plaintiff-Appellant, v. Catherine R. THATCHER and John Thatcher, her husband, Defendants-Respondents. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 249

37 N.J.Super. 249

117 A.2d 298

Abraham CABAKOV, Plaintiff-Appellant, v. Catherine R. THATCHER and John Thatcher, her husband,

Defendants-Respondents.

No. A--400.

Superior Court of New Jersey.

Appellate Division.

Argued Aug. 29, 1955.

Decided Oct. 10, 1955.

Michael G. Alenick, Newark, for appellant.

No appearance for respondents.

Before Judges GOLDMANN, EWART and TOMASULO.

The opinion of the court was delivered by

EWART, J.S.C. (temporarily assigned).

This was a suit for malicious prosecution in which the plaintiff sought both compensatory and punitive damages. After a five-day trial, the jury returned a verdict as follows:

'We the jury unanimously find the defendants, John Thatcher and Catherine Thatcher are guilty of malicious prosecution in all 3 counts.

'Further we find compensatory damages in favor of the plaintiff, Abraham Cabakov, against the defendant John Thatcher the amt. of $350.00 and further compensation damages against the defendant Catherine Thatcher in the amt. of .06 on each complaint signed by her.

'Further in the matter of punitive damages we find in favor of the plaintiff Abraham Cabokov, against the defendant John Thatcher the sum of $10,000.00.

'As to Catherine Thatcher, .06 cents verdict molded to read six cents on two counts equal .12 cents. And so say we all.'

Defendants thereupon moved for a new trial on the grounds, Inter alia, that the verdict was against the weight of the evidence and was excessive in amount. The trial judge in an oral opinion denied the motion as to that part of the verdict awarding compensatory damages, holding the verdict was supported by the proofs, but as to the part of the verdict awarding punitive damages the trial court said it:

'* * * must consider whether or not under the conditions and the circumstances and considering also the fact that malicious prosecution matters are not looked upon favorably in the law and that punitive damages are allowable--taking all of those matters into consideration and these matters not being ascertainable by any particular standard, in awarding the amount of $10,000. punitive damages it appears as an irresistible, clear and convincing inference the verdict was the result of mistake, partiality, prejudice or passion, and a new trial is awarded upon the basis of damages, punitive damages only. I will sign such an order.'

With permission of this court, granted pursuant to R.R. 2:2--3(b), plaintiff now appeals from the interlocutory order setting aside the verdict and granting a new trial as to punitive damages.

This action was based upon three criminal complaints which the defendants, husband and wife, swore out against the plaintiff. On January 11, 1950 defendant John Thatcher swore to a complaint before a local magistrate charging the plaintiff with having wilfully and maliciously destroyed a new fence line and with letting cattle into the highway; on the same date defendant Catherine R. Thatcher swore to a complaint before a local magistrate charging the plaintiff with having wilfully and maliciously destroyed certain boundary markers; and thereafter, following trial of an ejectment suit instituted by defendant Catherine R. Thatcher against the plaintiff, on or about April 10, 1951 she swore to a further complaint before a local magistrate charging the plaintiff with having committed perjury in the trial of the ejectment suit. Warrants issued against the plaintiff on each of these three complaints and plaintiff was twice taken into custody, once on the first two complaints and again on the third complaint. He was finger-printed by the police and held for the grand jury on each of the three complaints. Apparently he was not incarcerated, presumably having furnished bail.

On the first two complaints, plaintiff and his witnesses were present before the magistrate but neither of defendants appeared to support their charges nor were other witnesses called to support the charges. Nevertheless the magistrate held the plaintiff for the grand jury on each complaint. With respect to the third complaint, both defendants attended the hearing before the magistrate; there was a formal hearing at which both sides to the controversy were represented by counsel; and again the magistrate held the plaintiff for the grand jury.

Subsequently, and prior to the institution of this suit, the grand jury considered each of the three complaints and refused to indict on any of them.

At the trial Mrs. Thatcher took the stand and admitted that she had not seen the plaintiff destroy any boundary markers and she said she swore out the first complaint because her husband, the defendant John Thatcher, told her to. And with reference to the complaint for perjury made by Mrs. Thatcher against the plaintiff, defendant John Thatcher took the stand and testified he must have advised his wife to make that complaint. And he did not deny that he had told her to make the first complaint.

So much of the facts are undisputed.

The controversy between the parties to this action goes back to the year 1946. The plaintiff and his parents had owned and occupied for many years prior to 1946 a mill pond property in Warren County comprised of a 12-acre mill pond together with some six or seven acres of upland improved by a large three-story stone mill building together with a dwelling house and outbuildings. In or about the year 1945 defendants purchased and occupied an adjoining farm which they operated as a dairy farm. There were credible proofs from which the jury could have found that in the spring of 1946 defendant John Thatcher sought plaintiff's permission to use a private lane across the plaintiff's field and that when permission was refused, Thatcher answered that he would use it anyway; that in the year 1947 John Thatcher approached the plaintiff and endeavored to rent from the plaintiff the top floor of the mill for the stated purpose of setting up and operating an illicit still and that although the plaintiff refused to entertain that proposition, nevertheless Thatcher persisted for a long time in pressing and urging the plaintiff to rent him the top floor of the mill for the purpose stated; that in 1948 John Thatcher proposed to the plaintiff that they together obtain a retail consumption liquor license for the plaintiff's mill property and that they operate the middle floor of the mill pond for boating dance hall and use the mill pond for boating and recreation purposes, the defendant John Thatcher stating that they could make a lot of money in such an enterprise; that although the plaintiff refused to entertain this latter proposition, defendant John Thatcher continued to press the proposition upon the plaintiff over a long period of time to the plaintiff's considerable annoyance; that John Thatcher endeavored on more than one occasion to purchase the property from the plaintiff but plaintiff refused to sell; that in the spring of 1949 John Thatcher erected a new wire fence supported by iron posts, which fence departed from the well-marked boundary line of the lands of the respective parties and jutted out onto the plaintiff's land, running across the creek on the plaintiff's lands, but that when the plaintiff protested Thatcher removed the fence; that later in the same year Thatcher built another fence across the plaintiff's lands which fence extended into the middle of the creek, and that while plaintiff was in the act of removing the last mentioned fence from his lands, defendant John Thatcher appeared on the scene with two of his employees, struck at the plaintiff with a double-bladed ax and caused the plaintiff to fall backward down the bank into the creek; that following the incident last mentioned, and in the month of January 1950 two state troopers came to the plaintiff's home late at night with warrants for his arrest on the first two complaints above mentioned made by the defendants (actually they did not arrest him on that occasion but instructed him to report at the police station the next morning); that in December of 1950 Mrs. Thatcher instituted a suit in ejectment against the plaintiff which he successfully defended at a very considerable expense to himsel; and that on one of the occasions when the plaintiff had refused to sell his property to the defendant John Thatcher, the latter informed the plaintiff that he had political connections and was accustomed to getting what he wanted.

Plaintiff testified that he had been a healthy person prior to his controversy with the defendants; that he became ill as the result of the pressure to which the defendants subjected him and the criminal prosecutions they instituted against him; that he lost 40 pounds in weight and had to have medical attention; that he was unable to carry on his work; that he felt he had been disgraced in the community by reason of the criminal proceedings against him; that people in the neighborhood jibed at him; and that as a result of these various matters he became so nervous that he was unable to sleep at night. However, on cross-examination, plaintiff pretty clearly indicated that he felt there was no malice against him on the part of the defendant Mrs. Thatcher and that it was the defendant John Thatcher who had instigated the various actions against him.

Our examination of the record satisfies us that the proofs sufficed to warrant the jury in finding that defendants were actuated by improper motives and to support an inference of malice and a lack of probable cause. The trial judge was of like opinion and by his instructions left it open to the jury to assess punitive damages against John Thatcher if the jury found actual malice and lack of probable cause for the swearing out of the criminal complaints.

Advice of counsel was pleaded as a defense in this suit, and there was some testimony in support of that defense, but a reading of the record discloses that a question existed as to whether the defendants had made a full and fair...