Levine v. Mills

• Decision Date: 27 May 1955
• Docket Number: No. 1607.,1607.
• Citation: 114 A.2d 546
• Parties: Irvin M. LEVINE, Appellant, v. Richard Henry MILLS, Appellee.
• Court: D.C. Court of Appeals

114 A.2d 546

Irvin M. LEVINE, Appellant, v. Richard Henry MILLS, Appellee.

No. 1607.

Municipal Court of Appeals for the District of Columbia.

Argued March 21, 1955.

Decided May 27, 1955.

Samuel Z. Goldman, Washington, D. C., with whom Joseph D. Bulman, Washington, D. C., was on the brief, for appellant.

Emmett Leo Sheehan, Washington, D. C., with whom Landon Gerald Dowdey, Washington, D. C., was on the brief, for appellee.

Before CAYTON, Chief Judge, and HOOD and QUINN, Associate Judges.

CAYTON, Chief Judge.

A defendant appeals from a judgment of $7,500 entered against him in a suit for malicious prosecution.

The trouble started one night in December 1951 when Richard Levine, then a boy of twelve, came home in tears and reported to his parents that while on his way home on a Capital Transit bus the driver, Richard Mills, in demanding surrender of a transfer had yelled at him, grabbed and shook him, and pushed him toward the open door of the bus which was then in motion, and that he was saved from falling to the ground by another boy who was with him at the time. Richard's parents then went with him to a police station where they reported the occurrence. A detective was assigned to the case and went with the Levines to the bus terminus. There, it was testified, Mills at first denied ever having seen Richard before, but later admitted that he had shaken the boy. Levine denounced Mills (in language to which we refer more fully later). The detective notified all the parties to appear the following morning at an informal hearing before an Assistant United States Attorney. At the hearing Levine signed an application for a warrant and following another session in the same office a warrant was issued charging Mills with an assault on Richard. (At the trial of this present suit Levine said that the Assistant United States Attorney had recommended prosecution; Mills said that the prosecutor had advised Levine not to prosecute the case; and the prosecutor himself was not called as a witness because he reported that he had no recollection of the events.)

Mills was acquitted of the assault charge and then sued Levine in the United States District Court for the District of Columbia for malicious prosecution. Later Levine brought suit in behalf of his son Richard in the same court for damages for the alleged assault, naming as defendants Mills and the transit company. The District Court judge presiding at pretrial ordered that both cases be certified to the Municipal Court because he felt that a verdict exceeding $1,000 was not justified. This is a procedure authorized by Code 1951, § 11-756.

In the Municipal Court, the pretrial judge ordered the cases consolidated for trial; but when the actual trial was about to start, the judge presiding, on his own motion and over objection of Levine's counsel, ordered that the two cases be tried separately.

The jury awarded plaintiff $5,000 compensatory damages and $2,500 punitive damages. Defendant moved timely for a new trial (and in the alternative for a judgment n. o. v.) on several grounds, including excessiveness of the verdict. In considering this question we must discuss the evidence at greater length. Testimony given by the Levine boy and his companion was that as they were attempting to leave the bus by a side door Mills yelled at them to come to the front door and after reproaching him for keeping the transfer behind his ear, assaulted the boy in the manner we have already described. Mills gave a different version of the occurrence. He said that when Richard and another boy boarded the bus Richard had his transfer rolled up behind his ear; that when Mills asked him for the transfer he took it from behind his ear and pointed it at Mills; that when Mills reached for it Richard snatched it away from him; and that when Mills again asked to see the transfer Richard threw it in his face; he said that the boys were attempting to leave the bus by the front (not the side) door when the incident took place. He did not deny touching the boy, but said, "I laid my hand on his shoulder just as if I would correct my own child if he was out of line," and that he called on the boy to behave better the next time he got on the bus. As to the incident at the bus terminus, there seems to be no doubt that all the parties, Mills, Levine and the boy, were excited and that angry words were spoken. It was testified that though Mills first denied ever having seen Richard, he then admitted taking him by the shoulder and shaking him up; that Mills acted "ornery" and like a "wild man" and refused to give the police officer his name. It was also testified that Levine accused Mills of being drunk or behaving like a drunken man, and made statements to the effect that Mills should be fired and that if Mills worked for him he would fire him on the spot.

After the warrant had been issued, Mills' superintendent called him into his office and told him to go to No. 8 Police Precinct and pick up the warrant. When Mills went there about 9:00 p. m. he was booked and put in a cell. About a half hour later he was taken from the cell, interrogated at great length, and then returned to the cell. Around midnight he was taken in a police wagon to police headquarters along with a woman who was very drunk and disorderly and who created a mess in the wagon. At headquarters he was fingerprinted, photographed, and interrogated at still greater length. Then he was returned to the Precinct in the same wagon in company with the same disorderly woman. He was again "locked up, momentarily," and was then permitted to deposit $25.00 collateral and leave. He testified that as a result of the incident he had a weak stomach and that he was upset for about a month (his wife said two months). He said he consulted a physician who prescribed medicine for his nervous stomach. (In a deposition given earlier he had said that he did not receive medical attention as a result of the incident.) He said that after the incident his friends and fellow employees called him "child beater" and "jail bird." But he lost no time from his work, was still working for the transit company, and offered no evidence that his standing with the company had in any way deteriorated because of or since the arrest. There was no evidence of any pecuniary loss.

It has long been generally accepted judicial policy that suits of this kind are not favored in the law. Vancouver Book & Stationery Co. v. L. C. Smith & Corona Typewriters, 9 Cir., 138 F.2d 635, certiorari denied 321 U.S. 786, 64 S.Ct. 780, 88 L.Ed. 1077; National Surety Co. v. Page, 4 Cir., 58 F.2d 145, rehearing denied, 4 Cir., 59 F.2d 370. See also 34 Am.Jur., Malicious Prosecution, § 5, p. 705. Courts have taken the position that one who seeks to enforce rights which have been violated is not thereby committing a legal wrong, but may actually be performing a moral duty, and that a citizen should have free access to the courts in having his rights determined without being forced to respond in damages when he has caused a prosecution in good faith and on reasonable grounds. See 54 C.J.S., Malicious Prosecution, § 3, page 955. For the same reason it is right and logical that large verdicts in this type of action should be viewed with more concern and examined more critically for excessiveness than verdicts in other tort actions. Peel v. Bramlett, 298 Ky. 20, 181 S.W.2d 448, affirmed 305 Ky. 577, 204 S.W.2d 565; W. T. Grant Co. v. Taylor, 223 Ky. 812, 4 S.W.2d 741; Randol v. Kline's, Inc., 330 Mo. 343, 49 S.W.2d 112.

We agree that it is important that one falsely accused of crime and maliciously prosecuted should be reasonably compensated for his injury. We also agree that when the accuser has acted from evil motives or wantonly or oppressively, or from proven actual malice,¹ the law authorizes a jury to say that he ought to pay punitive damages. But we are well aware that in these cases there are often strong emotional overtones, making it easy for a jury to succumb to passion or prejudice or other improper motives, or to misconceptions of the evidence or the court's instructions. We cannot free ourselves from the conviction that there was such a misadventure in this case. We must hold that the verdict was excessive and cannot be permitted to stand.

We do not for a moment minimize the discomfiture which plaintiff endured, but the worst of his suffering, which he stressed in brief and argument, was during the several hour period he was in the hands of the police after, he went voluntarily to pick up the warrant. If he was mistreated by the police or held or questioned longer than was justified in a case of simple assault, or if he was subjected to distasteful episodes while in the police wagon, then it is reasonable to argue that these troubles cannot fairly be charged to Levine as a natural and probable result to be expected from the complaint he had made against Mills.² It is not necessary that we declare such to be the law of this case; it is sufficient to say that it is reasonable and logical to employ that approach in testing whether the verdict is in an area which must be called excessive.

We think it is proper to point out that though it is relevant and proper, in this type of case, to offer evidence of a defendant's financial worth to help the jury on the question of punitive damages,³ plaintiff offered no evidence and asked no questions on this subject. (Plaintiff's counsel did by way of a side remark refer to the defendant as a member of the Bar, but there was no evidence of that fact or whether defendant was in private practice or employed privately or by the government.) So the jury was given no guide as to defendant's salary, income, property holdings or financial status. Thus we have a judgment which not only bears no reasonable relationship to the evidence, but which might also prove wholly ruinous to defendant.

In the states, appellate courts have generally followed the...