Foster v. Pitts

• Decision Date: 23 January 1897
• Citation: 38 S.W. 1114,63 Ark. 387
• Parties: FOSTER v. PITTS
• Court: Arkansas Supreme Court

38 S.W. 1114

63 Ark. 387

FOSTER v. PITTS

Supreme Court of Arkansas

January 23, 1897

Appeal from Crawford Circuit Court, JEPHTHA H. EVANS, Judge.

Reversed and remanded for new trial.

Chas E. Warner, Ed. H. Mathes, J. B. McDonough and Rose, Hemingway & Rose for appellant.

1. When an attachment is sued out under an honest and reasonable belief that plaintiffs are entitled to it, then they act without malice, and are not liable. 98 U.S. 195, 196; 111 Mass. 497, 498. One who acts honestly is not guilty of malice, though he may not act reasonably. Webb's Pollock on Torts (Enl. Am. Ed.), p. 392. This is not in conflict with the principle that malice may be presumed from want of probable cause. The presumption is not one of law, but of fact merely. Cooley, Torts, p. 185 and n. 3; 98 U.S. 187. Legal malice is made out by showing that the proceeding was instituted from any improper or wrongful motive. Cooley Torts, p. 185. And hence legal malice is not made out where an honest motive is shown. 4 Fed. Cases, 2170; S. C. Taney 244; 98 U.S. 187.

2. What facts constitute probable cause is a question of law for the court; whether they are proved is a question of fact for the jury. 1 Wend. 345; 58 Mo.App. 35; 33 Minn. 192; 17 Fed. Cas. 993; 18 W.Va. 35; 39 Mo. 40; 98 U.S. 187; 11 F. 129; 1 Green1. Rep. 135; 3 Allen, 393; 55 F. 217; 55 N.W. 45; 21 At. Rep. 556.

3. The seventh instruction given is full of errors in defining the measure of damages. (1) There was no proof in regard to "injury to the goods." 58 Ark. 195. (2) It did not restrict the recovery for injury to credit and business standing to the damage shown by the evidence to have resulted in that particular, nor to the amount claimed in the complaint, and there was no proof of such injury. (3) It stated that plaintiffs were entitled to recover for "all expenses" they were put to by the attachment. 78 Mo. 296. (4) It left the assessment of vindictive damages to the unrestricted pleasure and free will of the jury, and submitted as an clement of damage loss of time, which was not alleged.

4. A reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious person in the belief that the person accused is guilty of the offense charged, constitutes probable cause. 70 Ill. 408; 53 Ill.App. 53; 58 Mo.App. 37; 16 Minn. 161; 33 Minn. 189; 17 Fed. Cases, 993; 55 F. 217; 55 N.W. 45; 21 At. 557. See also 4 Cush, 238-9; 111 Mass. 497-8; 1 Green1. 135; 57 Wis. 510.

5. It was error to admit testimony as to what could be made on notes and accounts in from one to two years. 34 S.W. 39. The true test was their market value.

6. Authority to act for another in business implies only authority to do lawful acts. 57 Wis. 510; 51 Ark. 545; 54 id. 572; 9 Johns. 118; 83 N.Y. 525-6.

7. Foster & Company are not liable for the malicious acts of their attorney, unless adopted or ratified by them. 2 Addison, Torts, sec. 872; 2 Hilliard, Torts, 411; 35 Ill.App. 182; 27 id. 410; 3 id. 41; 7 Ala. 628-9; 69 id. 378; 73 Ala. 195; Taney's C. C. Dec. 244; 4 Fed. Cas. 761; 69 Iowa 472-3; Drake, Attachment, p. 182; 43 Tex. 50; 57 id. 465; 32 S.W. 142; 9 Johns. 118; 1 B. Mon. 96; 63 N.Y. 181; 147 U.S. 101; ib. 109, 110. This last case settles the law that while the principal cannot escape liability for the tort of his agent merely because it was wilful, he cannot be held, because of its wantonness, for more than actual damages, unless he participated in the evil intent. See 9 Heisk. 52; 42 Wis. 654; 56 N.Y. 44; 10 Wis. 388; 57 Wis. 510, 577; 3 R. I. 88; 26 At. Rep. 193, 196; 62 F. 469, 480; 16 Mich. 447; 21 Vroom, 481. There is no proof of injury to credit. 9 So. Rep. 818. The verdict is excessive.

Oscar L. Miles for appellees.

1. If an attachment is sued and levied without probable cause, and afterwards, before the institution of a suit for damages for the wrongful and malicious suing out of same, the attachment proceeding terminates in favor of defendant, a suit for malicious prosecution will lie against the principal. 14 Am. Dec. 600; 35 Md. 196; 36 id. 255; 45 id. 204; 16 U.S. 765; 25 id. 116; 13 id. 1036; 33 Ark. 316; 32 id. 770, 170; 62 Mo. 56. Mere suspicions, without any reasonable ground for believing them to be founded in fact, will not amount to probable cause. Real belief and reasonable grounds must unite to afford a justification. 12 Am. Dec. 265; 12 Pick. 324; 38 Me. 523; 52 id. 502; 111 Mass. 492; 66 Me. 202, 204.

2. The attorney who made out the affidavit and brought the suit maliciously and without probable cause, at a time when he has general authority to act for his client, is jointly liable. 56 Mo. 89; 36 Cal. 262; 35 Ala. 349; 5 B. Mon. (Ky.) 544; 7 Blackf. (Ind.) 234; 37 Md. 369; 38 Am. Dec. 228; 35 id. 204; 36 id. 583. The plaintiff has the means of knowing personally, or of being well advised whether he has probable cause for instituting the suit. 15 Ark. 355. See 32 id. 770, 170; 33 id. 316; 37 id. 162, for the reason of the rule that if there is no probable cause the jury are justified in presuming malice.

OPINION

WOOD, J.

This is a suit for malicious attachment. The complaint alleges in substance, that the firm of Pitts & Zeiler, merchants, owed the firm of J. Foster & Company the sum of $ 613.85, and that J. Foster & Company and Ed. Mathes, their attorney, maliciously and without probable cause had suit brought, and an attachment sued out and levied upon the property of Pitts & Zeiler, which was dismissed, and terminated in their favor. They allege and pray for damages in the sum of $ 5,000 as follows: $ 1,000 for loss of business, $ 3,000 for injury to credit, $ 200 for expense of defending the suit, and $ 800 punitive. The answer denied all the material allegations of the complaint. The trial resulted in a general verdict for $ 3,000, and judgment accordingly, against all of the appellants.

Pitts & Zeiler, a firm of merchants at Webb City, in Franklin county, owed the firm of J. Foster & Company, jobbers, composed of Foster, Berry and Clarkson, the sum of about $ 600, about $ 400 of which was due the 1st of January, 1894. Foster sent the claim of his firm to Ed. Mathes, an attorney at law, living at Ozark, in Franklin county, a short distance from Webb City. Foster's instructions to Mathes were: "In case of any danger protect us." On the 1st of January, 1894, Mathes, without the knowledge of Foster & Company, brought suit, and had an attachment issued and levied upon a stock of merchandise of Pitts & Zeiler. Three days thereafter, Foster had Mathes to dismiss the suit, at Foster's cost.

Upon the questions of malice and want of probable cause, we would not disturb the verdict of the jury upon the evidence as to Mathes, and it is unnecessary to set it all out as it affects him. Such of it as may be pertinent in passing upon the law will be recited.

1. "Malice" and the "lack of probable cause" are not convertible terms. Neither follows as a legal presumption from the other. The jury may infer malice, as a fact, from proof of want of probable cause; but they cannot infer a lack of probable cause from proof of malice. Both must be proved. Honesty of purpose precludes malice. Malice is any improper or sinister motive for instituting the suit. It need not spring from any spirit of malevolence, nor be prompted by any malignant passion. Lemay v. Williams, 32 Ark. 166; Cooley, Torts, p. 185; Spengler v. Davy, 56 Va. 381, 15 Gratt. 381; Burkhart v. Jennings, 2 W.Va. 242; Commonwealth v. Snelling, 32 Mass. 337; Mitchell v. Wall, 111 Mass. 492; Stewart v. Sonneborn, 98 U.S. 187, 25 L.Ed. 116; Williams v. Hunter, 10 N.C. 545, 14 Am. Dec. 597, note; King v. Colvin, 11 R.I. 582; Bozeman v. Shaw, 37 Ark. 160; Frowman v. Smith, 16 Ky. 7, 12 Am. Dec. 265, 266, notes; Jaggard, Torts, 614-26.

Many authorities hold that probable cause is a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious person in the belief that there were grounds for the attachment. Davie v. Wisher, 72 Ill. 262; Barrett v. Spaids, 70 Ill. 408; Munns v. De Nemours, 17 F. Cas. 993; and other authorities cited in appellant's brief. Others hold that belief and reasonable grounds must unite to constitute probable cause. King v. Colvin, 11 R.I. 582; Spengler v. Davy, 56 Va. 381, 15 Gratt. 381; Burkhart v. Jennings, 2 W.Va. 242; Newell, Malicious Pros. p. 252; Frowman v. Smith, 16 Ky. 7, 12 Am. Dec. 265, and note. Cooley on Torts, * pp. 183, 211, and note.

The distinction may be more metaphysical than real. But we approve the latter rule. Under it, one, when sued for malicious attachment, could not say: "True, when I sued out the attachment, I had no knowledge of facts which would make a cautious person believe that the attachment would be sustained, and I did not so believe, but since that time facts have come to my knowledge which, had they then been known by me, would have justified such belief. Therefore there was probable cause." Spengler v Davy, supra. In civil actions no public interest is involved. "The plaintiff has the means of knowing personally, or being well advised" of the facts (Sexton v. Brock, 15 Ark. 345); and it is but just that he should be required to believe the facts, as well as that the facts themselves should exist, constituting probable cause. Cooley on Torts, p. 211. In this view, wherever there is a dispute about the facts, it is proper for the court to submit the whole question to the jury, telling them what facts constitute probable cause, and leaving them to determine whether such facts are established. Chrisman v. Carney, 33 Ark. 316. The court's charge upon malice and probable cause, as embodied in its fourth, thirteenth and fifteenth instructions, is in harmony with the law...