MacPherson v. Green

• Citation: 197 Va. 27,87 S.E.2d 785
• Decision Date: 13 June 1955
• Docket Number: No. 4385,4385
• Parties: COLIN C. MACPHERSON v. JOHN LOCKE GREEN. Record
• Court: Virginia Supreme Court

Page 785

87 S.E.2d 785

197 Va. 27

COLIN C. MACPHERSON v. JOHN LOCKE GREEN.

Record No. 4385.

Supreme Court of Appeals of Virginia

June 13, 1955.

Oren R. Lewis and C. Wynne Tolbert, for the plaintiff in error.

Miles Spence Bray, Charles Pickett and John Locke Green, for the defendant in error.

JUDGE: BUCHANAN

BUCHANAN, J., delivered the opinion of the court.

This is an action in detinue instituted in the Circuit Court of Arlington county by John Locke Green, plaintiff below and appellee here, against Colin C. MacPherson, now the appellant, seeking to recover possession of a letter, or the alternate value thereof, and damages in the amount of $10,000. Plaintiff's declaration, treated as a motion for judgment (Rules 3:1, 3:3), did not specify his ground for claiming $10,000 damage, but continued in these words:

'* * [A]nd plaintiff further says that the defendant, by means of his unlawful possession of said letter, which was wrongfully obtained and detained from plaintiff, its rightful owner, published said letter, but with certain changes and deletions which obscured its true meaning, for the purpose of injuring plaintiff in his reputation and standing, and did contrive by this means to greatly damage him, and plaintiff therefore asks that special damages be awarded him for the injuries so received, in the amount of Fifty Thousand Dollars ($50,000.00).'

On motion of the defendant the court struck from the declaration the quoted language, on the ground that the damages thereby claimed were not a natural and proximate result of either the taking or detaining.

Thereafter, on affidavit of Green that he believed such prejudice existed against him in Arlington county that he could not there have a fair and impartial trial, the case was removed to the Circuit Court of Hanover county where its trial before a jury resulted in a verdict finding that the letter was the property of the plaintiff 'and should be returned to the plaintiff and we award damages to the plaintiff in the amount of $300.00 against the defendant Colin C. MacPherson. ' The verdict having failed to find the alternate value of the letter, the court, in its written opinion giving its reasons for refusing to set aside the verdict, offered to impanel a jury to determine the alternate value. Afterwards the order appealed from was entered granting judgment according to the verdict after reciting that the defendant elected not to exercise the right granted him to have the alternate value of the letter ascertained. See Code § 8-592.

On this appeal the appellant assigns a number of errors, the effect of which is to challenge the right of the plaintiff to have the case removed to the Circuit Court of Hanover county and to recover damages from the defendant in any amount.

Removal of the case from Arlington county was had under § 8-157 of the Code, which provides for such removal 'for good cause shown,' § 8-159 further providing that the case shall be heard and determined by the court to which removed as if brought and the previous proceedings had in such court. The only cause for removal shown in the record was the affidavit of plaintiff alone that 'he verily believes' that such prejudice exists against him 'in the minds of prospective jurors' of the Circuit Court of Arlington county that he would not be given a fair and impartial trial.

It has long been the rule in this Commonwealth that the venue of a civil proceeding should not be changed for the mere belief of a party or his witnesses that he cannot have a fair trial in the jurisdiction where his case is pending. Facts and circumstances from which the conclusion is deduced must be stated, and the court must be satisfied from the facts and circumstances sworn to that a fair trial cannot be had in that court. Boswell v. Flockheart, 35 Va. (8 Leigh) 364; Wright v. Commonwealth, 114 Va. 872, 77 S.E. 503; Ramsay v. Harrison, 119 Va. 682, 89 S.E. 977. It was reversible error therefore to remove the case fro the Circuit Court of Arlington county merely on the affidavit of the plaintiff as to his belief. For that error the case would have to be remanded to the Arlington court for a new trial except for the reasons stated below.

The appellant does not question the sufficiency of the evidence on the trial in Hanover county to support the finding that the plaintiff was entitled to have possession of the letter. It was produced at the trial, tendered to the plaintiff, filed in evidence and is now in the record, subject to be returned to the plaintiff as demanded. Another trial to secure possession of it is not needed. The only issue remaining is on the question of damages.

The letter was dated December 29, 1945; written by the president of a bank in Orange, Virginia; addressed to John Locke Green, Treasurer of Arlington county, the pertinent part of which was these two paragraphs:

'I am returning herewith List No. 2, loans approved by us for service charges, together with check for $1851.50 payable to your order, which you may deliver to Hosmer & Pumphrey, or dispose of as you see fit.

'We have added the William Parramore loan to our list, but the Tuthill loan did not come in until after December 17th, the date of the Hosmer & Pumphrey list sent us. The Maurice Ireland note was paid September 27, 1945; and the remaining four notes, that is, Tracy, McFarland, Clary and Sterner, do not appear on any of our records.'

Green and MacPherson were opposing candidates for the office of treasurer of Arlington county in the election held on November 6, 1951. Green had been elected to that office at three previous elections as a party candidate but ran in 1951 as an independent. During his tenure of office Green made loans for banks and received compensation for that service. In a prior campaign and in the 1951 campaign his opponents criticized that practice. In some of these loan transactions the law firm of Hosmer & Pumphrey was associated with him. Prior to the date of the letter the president of the Orange bank called Green and stated that he had a long list of loans from Hosmer & Pumphrey which the bank had agreed to pay them for; that Green had had something to do with these loans so the check was being made payable to Green and he could straighten it out. Green testified that he divided the $1,851.50 received from the bank equally among Hosmer & Pumphrey, J. Maynard Magruder and himself; that he gave the letter and the list to Hosmer & Pumphrey so they could check the loans listed; but that he did not give the letter to them to give away or show anybody. This letter remained in the office files of Hosmer & Pumphrey until it was obtained and published by MacPherson.

In the 1951 campaign Green and Pumphrey were not on friendly terms. MacPherson went to Pumphrey, solicited his aid in the election and procured from him the letter in question without the knowledge or consent of Green. Pumphrey told MacPherson when he gave him the letter that he did not want the names in the letter published because they had no business in a political campaign. MacPherson thereupon deleted the proper names in the letter, reproduced the letter as deleted in a printed circular and mailed it out to voters on October 27, 1951. In the circular by the side of the letter was a statement to the effect that Green was acting as loan broker for certain banks in which he had deposited Arlington tax funds; that 'He tells you he has not received substantial fees for arranging loans. The letter reproduced here proves otherwise;' followed by an appeal to vote for MacPherson for treasurer.

On October 29, 1951, Green wrote MacPherson stating that he had seen the circular; that the deletions had changed the entire meaning of the letter and that MacPherson had perpetrated a fraud; that the letter belonged to Green and he wanted to know where MacPherson got it and demanded the return of the letter. This letter to MacPherson was published by Green in the November 1, 1951, issue of the Arlington Journal under the heading 'Who Stole My Letter?' It was also published without comment in the October 31 issue of the Arlington Daily Sun.

The opening statement to the jury at the rial was made by plaintiff personally and in it he referred to his success in previous elections and his loss of this one, which he coupled with the publication of the letter. On objection by the defendant the court ruled that 'the second part of the notice of motion, which was an action for slander, has been stricken out,' and limited the trial to the action of detinue and damage for detention of the letter, to which plaintiff's counsel responded: 'That is right.'

That, however, was not the issue that was tried. The plaintiff called his adversary as an adverse witness and cross-examined him. Defendant's counsel objected that the political campaign was being tried. Plaintiff counsel responded: 'The political campaign has not been ruled out of this case. It is right in it. ' And it was. The plaintiff himself joined in to say, 'It is for the jury to determine any damage for the use he put it to,' and the court agreed. From then on the evidence ranged far and wide into political conditions in Arlington county; the interference of a Washington newspaper in county affairs; the comparative merits and demerits of political parties; the fact that the defendant was not a native Virginian but came from Indiana, how he was nominated, who attended the convention and who were its leaders; and even a comment was included on the fitness of his counsel to be a Federal judge. We have not previously read a court procedure like it. We hope we shall not have to do so again. It was far removed from the order and dignity that should attend the judicial process in its effort to find the truth and establish justice.

On cross-examination the plaintiff still maintained that the loss of the election was an element of his damage. He was asked whether the damage he was claiming was that suffered by...