Darling v. Hines
| Citation | 32 N.E. 109,5 Ind.App. 319 |
| Decision Date | 26 October 1892 |
| Docket Number | 323 |
| Parties | DARLING v. HINES |
| Court | Indiana Appellate Court |
From the Boone Circuit Court.
Judgment reversed at the costs of the appellee.
S. M Ralston and M. Keefe, for appellant.
C. S Wesner and O. D. Wesner, for appellee.
This action was commenced in the Boone Circuit Court by the appellee against the appellant to recover a sum of money which he claims had been unjustly extorted from him by the appellant. The complaint was in one paragraph, to which a demurrer was filed by the appellant. This demurrer was overruled by the court and a proper exception taken. As the case will be reversed for the reason that the court below erred in overruling the demurrer to the complaint, it is necessary to set forth the material portions thereof in order that the point raised may be understood. The material allegations in the complaint are as follows:
"That on or about the 2d day of September, 1889, at the city of Lebanon, in the county of Boone, in the State of Indiana, the defendant accosted the plaintiff and said to him that he, the plaintiff, had taken from his (the defendant's) real estate in said county five wagon loads of manure, and that he, the said defendant, had consulted with one Charles M Zion, prosecuting attorney for said county, and that said Zion had informed him that it was larceny, and that he, defendant, had employed him, the said Zion, to institute two several suits against the plaintiff, one in his own behalf, and one a criminal prosecution for larceny, and that said suits were pending, and that if he, said plaintiff, did not give to him, said defendant, the sum of one hundred dollars for said manure, and the further sum of twenty-five dollars for fees that he had paid to him, the said Zion, he, the defendant, would send the plaintiff to the State prison of the State of Indiana, and would prosecute the said civil suit against him, said plaintiff, but that if this plaintiff would pay him, said defendant, the sum of one hundred and twenty-five dollars, he, the defendant, would have both of said cases dismissed; that this plaintiff believed that such suits had been instituted, and believing that said suits were pending, and relying on the statement of the defendant as to the pendency of said suits, civil and criminal, and believing that he, the said defendant, had paid the said Zion twenty-five dollars, and relying on said statement he did give the said defendant one hundred and twelve dollars on the terms and for the consideration that said cases were to be dismissed and for no other or different consideration; * * * that in truth and in fact there were no such suits pending; that said statements were false and fraudulent, and made for the purpose of black-mailing, cheating and defrauding this plaintiff, and were made to this plaintiff for the purpose of obtaining the said sum of one hundred and twenty-five dollars and for no other or different purpose."
An answer in three paragraphs was filed to the complaint, to which the plaintiff replied, thus putting the case at issue. The case was submitted to and tried by the court, without a jury, resulting in a judgment in favor of the plaintiff in the sum of $ 112. A motion for a new trial was filed and overruled.
The appellant assigns the following errors for the consideration of this court:
1st. The court erred in overruling the demurrer to the second amended complaint.
2d. The court erred in overruling the motion for a new trial. The complaint also set forth is denominated in the record as "the second amended complaint," and is the one referred to in the first error assigned.
As a consideration of the first error assigned will determine the case, it is unnecessary to refer to or discuss the motion for a new trial.
The theory of the complaint appears to be that the appellant extorted money from the appellee by representing to him that he had employed the prosecuting attorney of his county to bring two suits against him, one civil, the other criminal, for taking five wagon loads of manure from lands owned by appellant; that such suits had been actually brought and were pending; these representations being coupled with a threat upon the part of the appellant that if the appellee did not pay him money he, appellant, would send him "to the State prison for larceny" for taking the manure, and attended with the promise upon the part of the appellant that if he, the appellee, would pay the money demanded he, the appellant, would procure "both suits to be dismissed."
We are not aware of any recognized legal theory that will uphold the complaint as stating a valid cause of action. It can not be upheld upon the theory alone that the representations made were "false and fraudulent," for they were made concerning matters and under circumstances which the court will not regard as forming a proper subject for relief. Every practitioner knows, or ought to know, that using the words "false and fraudulent" in a pleading accomplishes no purpose unless the facts to which they are applied justifies the charge. There is no allegation in the complaint that the appellant did not take from the appellee's land "five wagon loads of manure" without right. There is no allegation that he was not guilty of larceny. There is no allegation that he was not indebted to the appellant for the manure he had taken. The cause of action which the appellee attempted to set forth in his complaint, hinged upon the statement made by the appellant that he had employed the prosecuting attorney to bring two suits against the appellee, one civil and the other criminal, for taking the manure. If the appellee had taken the manure and was indebted for its value (and this is not denied), the appellant had a right to bring a civil suit for the debt. If the appellee was guilty of larceny, he was bound to know that the appellant could not legally employ the prosecuting attorney to bring a "criminal suit" against him for the crime; that it would be the duty of such prosecuting attorney to proceed against him promptly in behalf of the State of Indiana without employment; that if such prosecutor, as such, accepted employment from the appellant to aid him in any scheme that he had against the appellee it would be official corruption pure and simple, and such as would render him utterly unworthy the commission he held.
If the appellee was indebted to the appellant for the manure, he knew at the time that the extent of such indebtedness was the value of the manure and no more; that if a civil suit was brought such value would constitute the measure of damages. It is not charged in the complaint that the appellee is feeble-minded. We must, therefore, infer that he is a person of ordinary mental capacity, capable of exercising ordinary judgment, prudence and discretion in his business relations. Manifestly, a representation that a civil suit had been brought against him for the trifling value "of five wagon loads of manure" ought not to have influenced the appellee, as a man of ordinary intelligence, to the extent of doing the things charged in the complaint. He had a full knowledge of all the facts and circumstances under which the manure was taken. He was not misled nor imposed upon in anywise in this respect, therefore when he paid the money he paid it understandingly, without making any inquiry whether a civil suit had been brought or not. If he was injured it was his own fault in not using ordinary prudence and caution in the premises, and being so the law will leave him where it finds him.
The representation made that a "criminal case" had been brought against the appellee by the prosecutor at the instance of the appellant, coupled with the threat that if the money was not paid, the appellant would cause him "to be sent to the State prison," and this utterance, with the promise that if the money was paid the appellee would cause such case to be dismissed, in no wise aid the cause of action in withstanding the demurrer. If the appellee was guilty of the crime of larceny, he certainly knew it, for he had a knowledge of all the facts of the transaction constituting the charge. If...
To continue reading
Request your trial