Chapman v. Anderson, 4108.

• Decision Date: 05 January 1925
• Docket Number: No. 4108.,4108.
• Citation: 55 App. DC 165,3 F.2d 336
• Parties: CHAPMAN et al. v. ANDERSON.
• Court: U.S. Court of Appeals — District of Columbia Circuit

55 App. DC 165, 3 F.2d 336 (1925)

CHAPMAN et al. v. ANDERSON.

No. 4108.

Court of Appeals of District of Columbia.

Submitted December 3, 1924.

Decided January 5, 1925.

J. B. Carter and G. V. Triplett, Jr., both of Washington, D. C., for appellants.

H. H. Benjamin and T. M. Baker, both of Washington, D. C., for appellee.

Before MARTIN, Chief Justice, VAN ORSDEL, Associate Justice, and BLAND, Judge of the United States Court of Customs Appeals.

BLAND, Acting Associate Justice.

This is an appeal from the judgment of the Supreme Court of the District of Columbia in favor of plaintiff (appellee) in the sum of $2,500 damages on account of malicious prosecution. Defendant Chapman is a retail coal dealer in Washington, D. C. Defendant Collis is an employee of Chapman.

On November 25, 1922, plaintiff's husband, W. T. Anderson, in defendant's office, asked to purchase a ton of hard coal for use in a latrobe. Defendant informed him that he was unable to supply him with hard coal, and he purchased a half ton of coke, for which he paid $8.50 cash. The coke was delivered, and two days later Anderson returned to defendant's office and advised the clerk that he had had difficulty in burning the coke, and again sought to purchase hard coal. While it is a matter of dispute as to just what conversation took place at this time, it is contended by defendants that he asked for the hard coal to mix with the coke. The clerk informed him that he had no hard coal, and Anderson stated that he had sick children in the house and was very much in need of the fuel. Collis came in, and upon hearing the conversation advised Anderson that he would scrape the buns and send him a ton of hard coal, even though some one else had to wait. Nothing was said by Anderson about taking back the coke. He stated that he thought probably, if he made a lot of noise about the coke, they would not let him have the coal, that he knew the coal was to be sent to him C. O. D., and that the price was $15.

On November 27th the ton of hard coal was delivered at Anderson's home on a C. O. D. ticket calling for the payment of $15. Anderson left with his wife the sum of $7, which amount he told her to pay to the driver, and further told her to tell the driver to take the coke back. The driver arrived with the ton of coal, and there is some little conflict in the testimony as to what happened, but the witnesses are substantially in agreement. He was told by Mrs. Anderson to dump the coal in the garage. He did so, and the plaintiff locked the doors of the garage. She offered him $7, and told him he could take back the coke for the remaining $8. The driver explained that he could not do that; that he had to take the $15 or the coal. Plaintiff would not give him the coal or the $15, and said she was instructed so to do by her husband. The driver states that, before he unloaded the coal, plaintiff had some money in her hand, but that she did not tender it to him until after the garage doors had been locked. This the plaintiff did not deny. The driver states that he knew nothing about the coke transaction. It was a rule at the coal office that, if a driver failed to get the money, it was charged to him. After calling the clerk in the office, the driver returned to the coal yard with the $7. Defendant Collis testified that he asked Keyes why he did not get the money before he unloaded the coal, and Keyes replied that the garage was narrow and he had seen the money, and Mrs. Anderson told him to pull outside and she would pay him.

The driver and defendant Collis on the same evening visited plaintiff's home in an attempt to collect the $8. Being unsuccessful, Collis probably threatened her with the law. He told her it was a poor way of getting coal, and that she could not buy any more coal from Chapman or any one else, unless she paid the balance on the order. The evidence indicates that the feelings between the parties were anything but friendly.

The two defendants consulted at their office, and it was agreed that Mr. Collis should take the matter up with Mr. Given, the Assistant United States District Attorney. Collis states that he related to Given the facts that had been related to him by the driver of the coal wagon. The record narrative of the testimony of Collis on this subject is as follows:

"* * * Two or three days after that, witness went down and saw Mr. Given and explained the case to him. Told Mr. Given about the colored man delivering the ton of coal to Mrs. Anderson; that she had told him to pull outside, and had then locked the door. He explained about the coke; that Anderson had gotten a half ton of coke before that, and did not make any complaint about it at the office, but took out for the price of it at the time the ton of coal was delivered, giving the balance of $7 to the driver. Mr. Given asked him how much the balance due on the coal amounted to, and he said $8, which was the price for a half ton of coke. He told Mr. Given the Andersons had offered to send the coke back, but that he considered that a closed matter. Mr. Given said the coke had nothing to do with the coal. Asked how much the coal cost and witness told him it was $15 and was sent out C. O. D. Mr. Given gave him a card and told him to take it down to the warrant clerk and the warrant clerk would give him a warrant. Thinks Mr. Given wrote larceny on the card. Witness went down to the warrant clerk and explained to him what Mr. Given had told him. Told the warrant clerk the same thing he had told Mr. Given. The warrant clerk wrote out the warrant and also the affidavit, after the witness had stated to him the same facts that he had stated to Mr. Given. It was the only thing witness knew to tell him. Never did tell Chapman he was going to swear out the warrant, and Chapman did not know he had sworn it out until the case in police court had been called; then witness told him all about it. Witness had never seen Mrs. Anderson before that. He did not bear any malice toward her, as he did not even know her. In swearing out the warrant he acted solely on the advice of Mr. Given. If Mr. Given had not told him to get out the warrant, the matter would have been closed. Witness heard Mrs. Anderson testify in this trial, and the facts which witness told Mr. Given were the same that Mrs. Anderson related on the witness stand, as to what happened. * * * Witness identified his signature to the affidavit on which the warrant for Mrs. Anderson was issued. Also identified Mr. Gott as the warrant clerk. Said he stated to Mr. Gott the same facts he stated to Mr. Given. Did not read over the affidavit after Mr. Gott had prepared it."

The narrative testimony in the record of witness Ralph Given is as follows:

"That he was Assistant United States Attorney, and had been for 17 years; that he had been in that line of work for 30 years; that he was Assistant United States Attorney in November, 1922. Witness remembered seeing defendant Collis; did not recall exact date, but remembered defendant Collis coming to his office. It was some time in the latter part of 1922. He was not certain whether Collis came alone, or whether there was a colored man with him. Was under the impression that he talked to the colored man too, but he might be mistaken. Knows that Mr. Collis talked to him, and said something about the controversy over a C. O. D. order for some coal. Can't recall very clearly what he said, but he knows that Mr. Collis talked to him about the coal transaction; said there had been a C. O. D. order sent to a house, meaning the home presumably of Mr. Anderson; that the colored man had been sent with the C. O. D. order, and had delivered the coal, but when he went to collect the bill he was refused the money. Told witness that some money had been paid, but that the purchaser had some claim of some kind that they had made and held out some of the money. Asked Collis if the colored man was responsible for the C. O. D. ticket if he lost the money, and was informed that he was. Then asked if the colored man had made a demand for the return of the coal, and was informed that he had. Told Collis if it was a C. O. D. order, and Mrs. Anderson had accepted the coal and had refused to allow it to be taken back, and had refused to pay for it, that he might have a warrant for larceny. Gave them a slip to the warrant clerk calling for a warrant for larceny. Witness usually determined the grade of the offense and the character of an offense for which a warrant would be issued. The warrant in this case was made out for the larceny of money of the value of $8, and the information was for the larceny of coal of the value of $8. Witness states that it should have been for the larceny of coal. Witness explained the mistake by the fact that he put on the slip simply the word `larceny' instead of designating `larceny of coal,' thinking the clerk would catch it up, as he always made inquiry. Witness stated that the information is the guiding paper, and that the issuance of the warrant for the larceny of money was a mere error; that the information would carry the charge as they thought fit and proper to file it. Witness stated to Collis that on the theory that it was a C. O. D. order, and demand had been made, and Mrs. Anderson deliberately kept the coal, and the colored man was responsible, he believed that Mrs. Anderson had been guilty of larceny.

"On cross-examination, witness stated that he was not absolutely certain that that was all that was told him, as there might have been some little things that he did not remember; that he did remember there was a colored man who was the driver, and that he understood the driver was responsible, and under these circumstances, he was entitled to his warrant. He knew the driver was connected with the matter in some way, but was not sure whether the driver came to his office. Witness was told that the $8 had been charged to the driver. Stated that if it had come to a question...