Drumm v. Cessnum

• Citation: 58 Kan. 331,49 P. 78
• Decision Date: 05 June 1897
• Docket Number: 10019
• Parties: A. DRUMM et al. v. JAMES CESSNUM
• Court: United States State Supreme Court of Kansas

49 P. 78

58 Kan. 331

A. DRUMM et al. v. JAMES CESSNUM

No. 10019

Supreme Court of Kansas

June 5, 1897

Decided January, 1897.

Error from Wabaunsee District Court. Hon. William Thomson, Judge.

Judgment reversed.

Robert C. Heizer, for plaintiffs in error.

Geo. G Cornell, M. B. Nicholson and Frank Herald, for defendant in error.

OPINION

ALLEN, J.

This action was brought by James Cessnum against A. Drumm, A. J Snider, and George T. Vance, to recover damages for an alleged malicious prosecution. Snider was not served with summons. The issues between the plaintiff and defendants served with summons were tried to a jury, and resulted in a verdict in favor of the plaintiff for eight thousand dollars damages. The evidence showed that Cessnum was arrested by the sheriff of Wyandotte County under a warrant issued on a complaint, sworn to by Vance, charging him with having by false pretenses obtained money from the firm of Drumm & Snider. A motion for a new trial was filed, in passing on which, it appears from the case-made that the court remarked: "That at the time the jury returned a verdict in this case the court was, and still is, of the opinion that the verdict was excessive, and that the jury was prejudiced against the defendants, or their business, and that unless the plaintiff would remit the sum of three thousand dollars of the amount of the verdict returned by the jury the court would grant a new trial in the case." The plaintiff consented to remit. The motion was thereupon overruled and judgment entered for the plaintiff for five thousand dollars and costs.

The evidence offered at the trial was conflicting; that on the part of the plaintiff, though not very satisfactory, tended to support his claim, and that introduced by the defendant tended to establish a complete defense. There is no doubt that the plaintiff was arrested on the affidavit filed by Vance and kept in confinement eight days, nor that he was afterward discharged. An award of eight thousand dollars damages seems very large. The trial judge held that it was excessive, and was of the opinion that the jury was prejudiced against the defendants or their business. If so, there has been no fair trial of the case. For aught that can be known, if the element of prejudice had been eliminated from the minds of the jurors, they might have credited the testimony offered by the defendants rather than that on the part of the plaintiff. We know of no rule by which the court can determine that a part of a single award of damages is excessive, and the result of prejudice, while the remainder is untainted. If prejudice has turned the scale, the verdict should be set aside, and a new trial had before an unbiased jury. A. T. & S. F. Rld. Co. v Cone, 37 Kan. 567...