Hershey v. O'Neill

• Decision Date: 05 September 1888
• Citation: 36 F. 168
• Parties: HERSHEY v. O'NEILL.
• Court: U.S. District Court — Southern District of New York

36 F. 168

HERSHEY v. O'NEILL.

United States Circuit Court, S.D. New York.

September 5, 1888

Henry G. Ward, for plaintiff.

Edward C. James, for defendant.

COXE J., (after stating the facts as above.)

Being more than ever convinced, after a re-examination of the evidence, that the verdict was right, and in accordance with the great preponderance of testimony, the court is not disposed to grant a new trial upon any ground which is merely technical and formal in character. Where the court can see that a proper result has been reached, that the party has succeeded who ought to succeed, the endeavor should be to preserve the fruit of the trial. Every doubt should be resolved in favor of affirmance; every exception not affecting the merits should be disregarded. Where a controversy has terminated in a correct and honest verdict it is for the advantage of both parties that litigation should cease.

The question arising on the pleadings is this: The complaint alleges, in substance, that the defendant, by his agents servants, and employees, arrested the plaintiff on a false charge, without right, authority, or reasonable cause. The answer denies that the defendant, or his agents servants, or employees, falsely or maliciously, or without reasonable cause, did any of the acts alleged against him or them in said complaint. It is asserted by the plaintiff that here is an admission that the arrest was made by the defendant's agents, and a denial only of the allegation that they acted maliciously and without probable cause. In other words, the defendant admits that his agents did the acts in question, when he denies that they did those acts maliciously. It is true that the answer contains a negative pregnant, that it is not an artistic piece of pleading, and that a motion to make it more definite and certain would, in all probability, have prevailed. There certainly is plausibility in the contention that the authority of the defendant's servants to act as they did is admitted; and yet it is quite clear, taking the answer in its entirety, that it was not the intention of the pleader to place the defendant in this attitude. The plaintiff could hardly have been misled by this denial. In a subsequent paragraph the answer sets out fully the facts as they were understood by the defendant. It alleges that one of his clerks, having reasonable cause to suspect the plaintiff of the commission of the crime of larceny, took the umbrella from her and caused her to be arrested. This was true. The defendant could not, truthfully, have denied it. The answer further alleges that the person who made the arrest was a police officer appointed pursuant to law. All this is inconsistent with the theory that the defendant admits that the plaintiff was apprehended and arrested by his agents, acting under his authority. It is not the spirit of modern jurisprudence to defeat a party, or deprive him of a substantial right, by a nice and overstrained construction of his pleading. On the contrary, where, as in this case, the objection is not made until the trial, it should not be heeded, unless the other party has been misled to his injury; and, in all cases where it can properly be done, ample opportunity for amendment should be permitted. It is thought, therefore, that the answer, taken as a whole, is susceptible of a more liberal interpretation than that placed upon it by the plaintiff, and that within the authority of Wall v. Water Co., 18 N.Y. 118, it may be held to put all the corresponding allegations of the complaint in issue. But, if this were otherwise, no reason is suggested why an amendment may not, even now, be made. Railroad Co. v. McHenry, 17 F. 414, and cases cited.

There was no mistake in instructing the jury that they should find for the defendant if they believed his witnesses. To say that the acts of Saunders, as related by him, amounted to an arrest, is surely to view them in a light superlatively harsh. No force was used. There were no threats. The plaintiff returned voluntarily; she was not compelled to do so by anything which Saunders did. The sidewalk on Sixth avenue was not a proper place to transact business, and his request, or demand even, that she...