Merchant v. Pielke
| Decision Date | 28 November 1900 |
| Citation | 84 N.W. 574,10 N.D. 48 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Richland County; Lauder, J.
Action by Edvina Merchant against Michael Pielke. Judgment for plaintiff. Defendant appeals.
Affirmed.
Morrill & Engerud, for appellant.
Plaintiff's actual damage as to her feelings, mental suffering, etc were trifling. Her money loss was only $ 27.50 and one day's time. Her actual damages, therefore, could not reasonably be placed at more than $ 50. The balance of the verdict must be accounted for on the theory of exemplary damages. In awarding exemplary damages the law requires a sound discretion based upon reason. The punishment must be in proportion to the offense. Saunders v. Mullen, 24 N.W. 529; International Ry. Co. v. Telephone Co., 5 Am. St. Rep. 45; Austin v. Wilson, 50 Am. Dec. 767; Southern Ry. Co. v. Kendrick, 90 Am. Dec. 332; 12 Am. & Eng. Enc. L. 54. It was error for the court to instruct the jury that defendant was liable for attorney's fees when her attorney was employed by her husband. There is no evidence that plaintiff ever promised to compensate her husband for the expense which he incurred, hence, she, not having incurred this expense or become liable for it, cannot recover damages which she has not sustained. In Chacey v Fargo, 5 N.D. 172, the court held, that the plaintiff was entitled to recover the amount expended for medical attendance, on the theory that the plaintiff had assumed that liability.
Smith Stimmel, for respondent.
The court properly charged the jury that it is not enough for defendant to prove generally that all the facts were laid before the attorney, but it must be shown what facts were communicated. Struby, Etc., Co. v. Kyes, 48 P. 663; Atchinson, Etc., Ry. Co. v. Brown, 48 P. 31; Parker v. Parker, 71 N.W. 421. It was proper for the court to leave it to the jury to say whether the attorney selected was a proper adviser under the circumstances. Watt v. Corey, 76 Me. 87; Hess v. Banking Co., 49 P. 803. It must appear that all the facts within his knowledge, and which he could ascertain by the exercise of reasonable diligence, were laid before his counsel. Parker v. Parker, 71 N.W. 421; Walter v Sample, 25 Pa. 275; Wuest v. American Tobacco Co., 73 N.W. 903. Evidence of ill will was competent as showing malice. Woodworth v. Mills, 20 N.W. 728; Casebeer v. Rice, 24 N.W. 693; Travis v Smith, 44 Am. Dec. 125; Wild v. Odell, 56 Cal. 136. The facts and circumstances, under which the prosecution acted, were competent for the purpose of showing that a reasonable man could not have believed the truth of the charge made by him. Lunsford v. Deitrick, 11 Am. St. Rep. 37; Casebeer v. Rice, 24 N.W. 693. The elements of actual damage, which it was competent for the jury to consider, were the expenses plaintiff was put to in making her defense, loss of time, deprivation of liberty, loss of society of her family, injury to her good name, personal mortification of being placed under arrest, wounded pride, mental suffering and smart from the malicious arts and acts of oppression of the defendant. Hamilton v. Smith, 39 Mich. 322; Kolka v. Jones, 6 N.D. 461, 71 N.W. 558; Jackson v. Bell, 58 N.W. 671; Sheldon v. Carpenter, 4 N.Y. 579; 55 Am. Dec. 301; Rockwell v. Brown, 36 N.Y. 217; Parkhurst v. Masteller, 57 Ia. 474; Plath v. Braunsdorff, 40 Wis. 107. Exemplary damages are authorized by our statute. § 4977, Rev. Codes. Damages being in the discretion of the jury will not be reviewed except in extreme cases. Ross v. Jones, 81 Am. Dec. 373; Chapman v. Dodd, 10 Minn. 350; Neys v. Taylor, 81 N.W. 901; Pratt v. Pioneer Press Co., 20 N.W. 87.
Action to recover damages for malicious prosecution. Verdict for plaintiff for $ 800. Defendant moved for a new trial. This was denied, and judgment was entered on the verdict. Defendant appeals from the judgment.
The complaint alleges that the defendant, with malice and without probable cause, procured plaintiff's arrest and imprisonment upon the charge of malicious mischief, of which charge she was thereafter duly acquitted. Damages are alleged as a result of such wrongful arrest as follows: $ 30.15 expenses incurred in making her defense, and $ 2,000 for injury to her reputation, and for physical and mental suffering. The answer denied all of the allegations of the complaint.
The order denying the motion for new trial is assigned as error. Consideration of this requires a review of the alleged errors upon which the motion was based. They are: First, errors in the admission of evidence; second, error in the instructions. It appears that since 1898 plaintiff and her husband and their family have resided on a farm owned by the defendant, holding possession thereof under a five-year lease. Defendant and his family have also resided on said farm. The lease reserved certain rights to him, among which was the use of certain buildings. The dwelling houses occupied by the two families are close together, and the same is true of the other farm buildings. Shortly after the execution of the lease, differences arose between the parties thereto as to their respective rights thereunder, which differences resulted in numerous serious controversies between the members of the two families, and were the source of much vexatious litigation. See Merchant v. Pielke, 9 N.D. 245, 82 N.W. 878. On August 17, 1899, defendant caused plaintiff's arrest, which arrest she alleges was without probable cause, and was malicious, and for which she now seeks to recover damages. It is shown that she was acquitted and discharged on August 18, 1899,--being the day succeeding her arrest. The law is entirely clear as to what facts a plaintiff in an action to recover damages for malicious prosecution must prove to warrant a recovery. They are these: "(1) That he has been prosecuted by the defendant, either criminally or in a civil suit, and that the prosecution is at an end; (2) that it was instituted maliciously, and without probable cause; (3) that he has thereby sustained damages." 2 Greenl. Ev. (16th Ed.) 424; 2 Rice, Ev. 1062. As has been seen, plaintiff was prosecuted criminally by defendant, and such prosecution resulted in her discharge. Consequently, the only facts for the jury to determine were the absence of probable cause for the arrest, the existence of malice, and amount of damages; and on each of these they found for plaintiff.
Nine of the errors assigned in the brief of appellant's counsel relate to the admission of evidence. Over defendant's objection the plaintiff and her husband were permitted to give the details of several of the numerous quarrels which occurred between the two families prior to her arrest. It is not necessary to refer to this evidence in detail. We have examined it with care, and agree that it was relevant and material on the existence of malice on the part of defendant in causing plaintiff's arrest. It is true, the jury might have inferred malice from want of probable cause. Kolka v. Jones, 6 N.D. 461, 71 N.W. 558. But plaintiff saw fit--as she had a right to do--not to leave the question of malice to inference, and accordingly offered evidence of express malice. To show this, she introduced testimony as to the relations of the parties, feelings of hostility and enmity entertained by defendant towards plaintiff, his acts, conduct, and declarations; all of which was proper to show the presence or absence of malice in making the arrest. Newell, Mal. Pros. 240; Thurston v. Wright, 77 Mich. 96, 43 N.W. 860; Bruington v. Wingate, 55 Iowa 140, 7 N.W. 478. Brown v. Willoughby, 5 Colo. 1. See, also, Walker v. Pittman, 108 Ind. 341, 9 N.E. 175; 14 Am. & Eng. Enc. L. 61, notes; 1 Jag. Torts, § 200, and cases cited. Counsel for appellant urges that the admission of the evidence in question was highly prejudicial to defendant for the reason that it led the jury to mulct him in a much larger sum than they would have done had it been excluded. It certainly is true that the sum awarded as damages is not compensatory merely. In fact, the amount of the verdict clearly shows that it is chiefly punitive, and was exacted as smart money because of the evil motive with which the arrest was made; and it is quite true, as counsel argues, that the amount of the verdict was influenced largely by the evidence complained of. But, nevertheless, the evidence was proper. The existence of malice was material to plaintiff's case, and if it showed that the defendant was actuated by a high degree of malice in causing the arrest, and thus the amount of exemplary damages was increased, he cannot say that he was legally prejudiced, any more than any other litigant who has failed in the testimony on a material issue.
We turn now to the alleged errors in the instructions. It appears that, before swearing out the complaint for plaintiff's arrest, defendant consulted an attorney in reference to making the arrest. The attorney consulted was in defendant's employ in a civil action involving matters closely connected with the facts which were material in the criminal charge. On this the court gave the following instructions, which are assigned as erroneous: (1) "I leave it for you to say from all the evidence in the case whether the defendant acted in good faith in consulting his own attorney employed by him in the civil action, and, if you find that he did not act in good faith in consulting with said attorney, then he cannot plead such advice as a defense to...
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