Gregory v. Chambers

• Decision Date: 30 April 1883
• Citation: 78 Mo. 294
• Parties: GREGORY, Appellant, v. CHAMBERS.
• Court: Missouri Supreme Court

78 Mo. 294

GREGORY, Appellant,

v.CHAMBERS.

Supreme Court of Missouri.

April Term, 1883.

Appeal from St. Louis Court of Appeals.

AFFIRMED.

Bell & Huff and Erskine & Foster for appellant.

Pattison & Crane for respondent.

PHILIPS, C.

Action for malicious prosecution. The petition alleged that the defendant maliciously and without probable cause, caused his arrest under an affidavit lodged in the St. Louis court of criminal correction for embezzlement of $86.50, the property of defendant; that under the warrant the plaintiff was arrested and confined in jail for one day; that he was brought before the court for trial and prosecuted by defendant; that he was discharged and the prosecution determined. Judgment for $10,000 damages was prayed for. The answer tendered the general issue. On the trial the bill of exceptions shows the affidavit of Chambers was read, made in “attachment suit before Justice J. C. H. Cunningham.” No other affidavit is shown. The warrant for Gregory's arrest was read.

The plaintiff testified that he was in jail twenty-four hours; that his wife employed an attorney that cost him $101. One Reid testified, for plaintiff, that he was at the court of criminal correction at the time the case of Gregory against Chambers was tried; that he prosecuted--examined the witnesses; that Mr. Chambers was present as a witness for the State. The question was then asked witness: “State Mr. Chambers' manner on that occasion; was it vindictive, or otherwise?” This was objected to, and the objection sustained. Witness was also asked: “Are you able to state what was said and done at that trial? If so, go on and give it to the jury.” This question was also objected to by the defendant, and excluded by the court. The witness was then asked: “After he gave his testimony, he did what?” Ans. “He took his seat by me, and suggested points all the way through the trial.”

Gregory, it seems to have been assumed, was acquitted of the charge in the affidavit; though neither the affidavit nor judgment appears in the bill of exceptions.

On the part of the defendant, Thomas Boyd was sworn, and testified that he and the plaintiff Gregory were both in the employ of defendant Chambers in 1875; that plaintiff was employed to deliver books for Chambers and collect the money for them; that it was witness' business to keep an account of the books taken by plaintiff for delivery, and plaintiff's duty to account to witness each evening for the money received; that plaintiff left Chambers' employ without warning and went to New York, and that when he left he was short in his accounts; that he wrote a letter to Chambers from New York, in which he acknowledged that he had used Chambers very badly, that he wanted to get back to his family, but was afraid of prosecution. Witness stated the contents of this letter, the letter itself being shown to have been lost. The witness was then asked what was plaintiff's reputation in the community previous to 1875. To this plaintiff objected on the ground that it was incompetent, but the court allowed the evidence, and the witness stated that “it was bad.” There was considerable other testimony to the same effect. Witness also stated, without any objection on plaintiff's part, that on two previous occasions while plaintiff was in Chambers' employ he, plaintiff, failed to account for money-- for about $600 in all; that on the first occasion he was behind $256 or $265.

The defendant's testimony tended to show grounds of probable cause for his action and his good faith, and that he had acted on the advice of counsel, etc.

Upon the evidence and the instructions given by the court to the jury, a verdict was rendered in favor of plaintiff, and his damages assessed at $1. Plaintiff moved for a new trial, which being overruled, he appealed to the St. Louis court of appeals, where the judgment of the circuit court was affirmed. Thereupon plaintiff appealed to this court.

Among the instructions given on behalf of the plaintiff, is the following: “If the jury find for plaintiff, he will be entitled to recover such damages as the jury believe from the evidence he suffered by reason of the prosecution, and in addition thereto the jury may add such further amount, by way of smart money, as they think from all the circumstances the defendant should be punished with.”

1. MALICIOUS PROSECUTION: damages.

The principal error complained of by the plaintiff, the appellant, is, that the jury, in assessing his damages at $1, disregarded this instruction, inasmuch as his evidence showed that he had expended $101 as attorney's fees in securing his release from the prosecution. It may be conceded that under the law as now generally recognized, in the action for malicious prosecution, the jury may award the plaintiff the damages directly sustained by him in the defense of the original suit or prosecution against him, including reasonable counsel fees. Farlie v. Danks, 30 Eng. L. & Eq. 115; Closson v. Staples, 42 Vt. 209; Sheldon v. Carpenter, 4 Comst. 579. But is the rule imperative? Has he such a right to this re-imbursement for counsel fees as to command it of the jury?

In Bradlaugh v. Edwards, 11 C. B. (N. S.) 377, Chief Justice Erle discusses this precise question, and his reasoning and conclusion meet my understanding of the law. The evidence in that case showed that plaintiff had expended in his defense over seven pounds, while the jury returned a verdict of one farthing. “Where (says the court) a party has been illegally imprisoned and been put to expense in procuring his discharge, he may very well urge that before the jury as an aggravation, but he has no right to demand to be re-imbursed ex debito justitiae. It is in the discretion of the jury to give him such damages as they may consider a sufficient compensation for the wrong the party has sustained, irrespective of any expense he may, perhaps needlessly, have incurred in his defense.” The learned judge then observes that in view of the questionable morality of the plaintiff's conduct the jury within their discretion concluded “that the injury he had sustained by the short imprisonment he endured was one for which a large sum ought not to be paid, but, on the contrary, was, in the result, a substantial benefit to the plaintiff, and, therefore, amply compensated by the small sum they have awarded him.” Williams, J., page 385, added that the plaintiff “had no more right to receive those expenses than a plaintiff in an action for assault has to recover the amount of the surgeon's bill for dressing his wounds. It is a matter which the jury may take into their consideration, but that is all.”

So in Colyer v. Huff, 3 Bibb 34, action for slander, damages awarded one cent, the court say: “It is an invariable rule never to grant a new trial for the smallness of the damages, in an action founded upon tort and sounding merely in damages.” After observing that the rule as a matter of course does not apply to actions ex contractu, nor where the verdict is the result of fraud or misconduct, wherein the new trial is granted, “on account of the extrinsic cause which produced the smallness of the damages, and not account of the smallness of the damages alone,” the court pertinently to the argument of plaintiff's counsel in his brief, in the present case, say that “the argument which admits the rule but tends to prove its inexpediency or injustice cannot be entitled to weight. We have no authority to alter the established rules of law. We sit here to declare what the law is, and not what it ought to be.”

In Mostin v. Coles, 7 Hurl. & Nor 872, action for injury to goods, the uncontradicted evidence was that the goods lost amounted to 2 l. The jury returned a verdict for nominal damages. Held, no ground for new trial. The court in this case put an apt illustration; the action for injury sustained by a railroad accident where the defense interposed is contributory negligence: “The jury being divided in opinion upon the question, and being unable to agree upon it, might nevertheless succeed in arriving at a unanimous verdict for nominal damages. It seems to me possible to reconcile this verdict as the result of an opinion that although the misconduct of the plaintiff had not occasioned the injury, it had in some way contributed to it.” So in this case, there was evidence before the jury from which they might have reasonably inferred that the plaintiff's conduct was not free from fault and reprehension; and while out of leniency they were unwilling to turn him out of court without a salve, they did not feel that the defendant deserved to be mulcted further than $1 and the costs. See Richards v. Ruse, 24 Eng. L. & Eq. 407.

2. THIS COURT WILL NOT REVERSE A JUDGMENT.

In the case of Randle v. P. R. R. Co., 65 Mo. 334, HOUGH, J., recognizing no doubt the rule above announced, “The verdict of the jury is for many purposes undoubtedly conclusive.” Furthermore, no rule of law is more firmly grounded in the practice of this State, than that the jury is the sole judge of the weight of evidence and the credibility of the witnesses. Upon this part of their province no judge is permitted to go. As early as the 4th Mo., in Bryan v. Wear, p. 106, where plaintiff in ejectment had offered uncontradicted evidence of his title, this court held it error to instruct that plaintiff had shown a good title, because it in effect told the jury “they must believe the evidence.” In McAfee v. Ryan, 11 Mo. 365, it was...