Goodman v. Klein

• Decision Date: 26 October 1920
• Docket Number: No. 4050.,4050.
• Citation: 87 W.Va. 292
• Court: West Virginia Supreme Court
• Parties: Jerome Goodman, Who Sues, etc., v. Id. M. Klein.

87 W.Va. 292

Jerome Goodman, Who Sues, etc.,

v.Id. M. Klein.

No. 4050

Supreme Court of Appeals of West Virginia.

Submitted October 19. 1920.

Decided October 26, 1920.

1. Malicious Prosecution" Evidence of Knowledge of Innocence of Accused Competent.

In an action for malicious prosecution it is competent for the plaintiff to show that no crime had been committed by him, and that the defendant knew it. (p. 295).

2. Evidence Evidence of Intention or Motive Competent.

In an action for malicious prosecution the defendant may be allowed to testify as to his intention or motive in setting on foot the alleged malicious prosecution, (p. 296).

3. Malicious Prosecution Evidence of Conduct Held Admissible to Show Malice.

In an action for malicious prosecution it is proper for the plaintiff to show, as tending to prove malice upon the part of the defendant, that after the prosecution was set on foot by him a statement was made in his presence by another party, and undenied by him, that he was advised before the warrant was issued that there was no basis for the prosecution, but that he persisted therein and demanded that a warrant be issued upon the complaint made by him. (p. 297).

4. Same Proper Charge on Punitive Damages.

In an action for malicious prosecution it is proper to instruct the jury that in case they find that the defendant acted with malice toward the plaintiff, or with reckless and wanton disregard of his rights, they may allow punitive or exemplary damages in excess of what would compensate the plaintiff for the injury actually sustained, to punish the defendant, and to deter others from committing like offenses, provided the compensatory damages found by the jury are not sufficient for such punitive or exemplary purpose; and in case they do find that the compensatory damages are insufficient for such purpose, then they may add only such additional amount as taken together with the compensatory damages will be sufficient therefor, (p. 297).

5. Same Probable Cause Question for Court.

In an action for malicious prosecution, where the facts are conceded, or undisputed, it is for the court to say whether or not there was probable cause for the institution of the prosecution, (p. 298).

6. Same Malice Question for Court

In an action > for malicious prosecution, where the facts are in dispute, or where, if conceded, an inference could be drawn consistent with the defendant's innocence of a malicious purpose, the question of whether or not he acted maliciously will be for the jury. Where, however, the facts are undisputed, and the sole motive actuating the defendant, as admitted by him, was an improper and wrongful one, there is made a prima facie case of malice, and if this is not rebutted the court should instruct the jury that the plaintiff is entitled to recover, (p. 298).

(Williams, President, absent.)

Error to Circuit Court, Wyoming County.

Action by Jerome Goodman, who sues, etc., against B\ M. Klein. Verdict and judgment for defendant, and plaintiff brings error.

Reversed and remanded.

Anderson, Strother,.Hughes & Curd, for plaintiff in error. Iii'rz, Judge:

To review a judgment of the circuit court of Wyoming county rendered upon the verdict of a jury in an action for malicious prosecution, this writ of error is prosecuted.

The defendant David M. Klein was engaged in the mercantile business in the town of Mullens, in Wyoming county, occupying during the early part of the year 1918 for that purpose a storeroom owned by the Mullens Realty Company. In August or September of that year he rented a new building in which to carry on his mercantile business, and in November notified his landlord that Ire would move into the new building. The landlord thereupon rented the old building to E. H. Lopinsky, who desired to engage in the same class of mercantile business, at the town of Mullens, in which Klein was engaged. When Klein discovered, early in December or the latter part of November, that Lopinsky had rented the building he wrote to his landlord claiming that he was entitled to retain the building if he desired; that he was only willing to give it up upon the theory that it was to be occupied for a drugstore, and not as a dry goods and clothing store; and insisted that he be allowed to have the building; and agreeing to pay double the rent he had theretofore been paying for the same. The landlord immediately wrote to him advising that his request could not be complied with, inasmuch as he had already made a contract with Lopinsky under the belief that he, Klein, did not longer want the building. Lopinsky shipped a carload of merchandise to Mullens for the purpose of opening up his store. It arrived there on the 1 1 th day of December. He also sent to Mullens on that day four of his employes for the purpose of opening up the store unloading the merchandise, and placing it therein. The plaintiff, a boy of sixteen years of age, was one of these employes. The party, however, was in charge of Harry Klein. When they arrived at Mullens Harry Klein met the defendant and asked for the key to the storeroom. He was informed that he could not have it, and he thereupon informed the defendant that if he could not get the key to cider the room he would have to break it open; that he intended to open up in the storeroom on that day; and the defendant thereupon advised him that if he did enter the storeroom he would give him serious trouble. Lopinsky's agent Klien thereupon went to an agent of the landlord in the town of Mullens and informed him of the above facts, and after communicating with his principal in Huntington, West Virginia, this agent instructed Harry Klein to enter the building by breaking the lock, if he could not secure a key. On re- ceiving these instructions Klein sent the plaintiff Goodman out in the town to secure some trucks for the purpose of unloading the goods, and while plaintiff was engaged in doing this Klein went to a hardware store, bought a glass cutter, cut out the glass in one of the doors, unlocked the vale lock on the inside, and entered the room. Thereafter all four of Lopinsky's employes entered the room and began to clean it up and put it in condition to receive the stock' of goods. The defendant, observing that these parties were in the storeroom, went before a justice of the peace and made complaint under oath against them, charging that they did unlawfully and feloniously break and enter, in the daytime, the said storeroom, with intent to steal, take and carry away his goods and chattels, and upon this complaint the justice issued a warrant for each of Lopinsky's employees, including the plaintiff, upon which they were arrested, and brought before said justice. It appears that they requested the justice to delay proceedings upon the warrants until the next day, when they could be represented by an attorney, and they were discharged until the next day on their own recognizances. The next day they appeared, before the justice with their attorney, and were informed that they had waived an examination before the. justice, and would have to give bond to answer any indictment that the grand jury might make against them. The justice was requested to conduct a preliminary examination, hut declined to do so. Plaintiff thereupon entered into a recognizance to answer any indictment that might be found against him by the grand jury. In discharge of this recognizance he appeared at Pineville, the county seat of Wyoming county, at the February term of the court. At this term there was no grand jury summoned, and he was required to enter into a new recognizance to appear at the next term. This he did. He appeared, at the next term, and the grand jury failing to make an indictment, he was discharged, ami this action for malicious prosecution was thereupon instituted against David M. Klein, a trial of which resulted in a verdict in favor of the defendant, and a judgment of nil, capiat thereon.

Several assignments of error are based upon the action of the court below in the admission and rejection of evidence. Upon the trial Harry Klein, the employe of Lopinsky who was in charge of the business at Mullens, was asked whether or not the plaintiff Goodman broke into the store, and whether or not he stole anything belonging to the defendant therein. The court declined to allow him to answer these questions, although it is avowed, that he would have answered that the plaintiff did not break into the store, and that D. M. Klein knew that he did not, and. that the plaintiff did not take any of defendant's goods. In an action for malicious prosecution it is always competent for the plaintiff to'prove that there was in fact no crime committed. The charge made against the plaintiff here was that he broke into a storeroom of the defendant with the intention of taking, stealing and carrying away the defendant's property. Surely evidence that he did not...