Pittsburg, J., E. & E.R. Co. v. Wakefield Hardware Co.

• Decision Date: 13 November 1906
• Citation: 55 S.E. 422,143 N.C. 54
• Parties: PITTSBURG, J., E. & E. R. CO. v. WAKEFIELD HARDWARE CO.
• Court: North Carolina Supreme Court

55 S.E. 422

143 N.C. 54

PITTSBURG, J., E. & E. R. CO. v. WAKEFIELD HARDWARE CO.

Supreme Court of North Carolina

November 13, 1906

Appeal from Superior Court, Guilford County; W. R. Allen, Judge.

Action by the Pittsburg, Johnstown, Ebensburg & Eastern Railroad Company. From the judgment, both parties appeal. Affirmed on plaintiff's appeal. Reversed on defendant's appeal.

An action for malicious prosecution is distinguished from one for abuse of process in that, in the former, malice, want of probable cause, and termination of the former proceedings must be shown; and in the latter, none of these, but an ulterior purpose and an act in the use of the process not proper in the regular prosecution of the proceeding must be shown.

This case was here (135 N.C. 73, 47 S.E. 234), when a demurrer for misjoinder was sustained because the surety on the attachment bond had been joined as defendant. It was again here (138 N.C. 174, 50 S.E. 571), when a demurrer to the complaint was overruled. The defendant had instituted an action against the Coke & Coal Company, a corporation of this state, for the recovery of $415 for car material, and joined the plaintiff herein, a railroad company incorporated in Pennsylvania, as codefendant. The two companies had at that time the same officers and nearly the same stockholders, and the material had been used on the latter's cars. The complaint alleged that the material was bought for said railroad company in fact as an undisclosed principal. In said attachment, 10 of the defendant's cars were attached, and, it not offering to give bond, the said 10 cars were held two years, when the attachment was dissolved. This action was brought for damages, alleging malice and want of probable cause. and that the attachment of the 10 cars was excessive and an abuse of the process of the court. Both plaintiff and defendant appealed.

J. T Morehead, W. H. Carroll, and Scott & McLean, for plaintiff.

Taylor & Scales, for defendant.

Plaintiff's Appeal.

CLARK C.J. (after stating the case).

The plaintiff sought to show that for the 10 cars attached it should recover what the cars would have earned by way of rental or car toll. It was in evidence that the plaintiff's road is only 17 miles long, but that it owns a large stock of cars and its principal business was the hiring out on mileage its freight and coal cars to be used on other roads, in short, as its counsel somewhat felicitously expressed it, its chief business was that of a "railroad livery stable," hiring out conveyances. His honor properly excluded the evidence of profits which the plaintiff might have made from hiring its cars, because that would be speculative damages. Sharpe v. Railroad, 130 N.C 614, 41 S.E. 799. The true measure of damages is the interest upon the value of the cars, increased or diminished, as the case might be, by the difference between the deterioration n the cars if in daily use and their deterioration while wrongfully tied up, provided of course the plaintiff could not have avoided all injury from the attachment by simply giving bond--as it is shown that it was amply able to do--and retaining possession of its cars.

No error.

Defendant's Appeal.

It was error to refuse to admit the testimony of the agent of the company which was surety on the prosecution bond in this action, that, for a payment of $10, it would have signed a replevy bond to secure release of the 10 cars when attached. Though it may not be the duty of a defendant in all cases to execute a replevy bond, it would be preposterous to justify nonaction whereby the plaintiff clams it has lost $4,750 rental of cars when it was a perfectly solvent company, owing no debts, as its president testified, and could, at a petty expense and probably without any at all, have given bond and retained possession of its cars. "The rule, in brief, is that, in cases of contract as well as in tort, it is generally incumbent upon an injured party to do whatever he reasonably can to improve all reasonable and proper opportunities to lessen the injury. *** He must not remain supine, but should make reasonable exertions to help himself and thereby reduce his loss and diminish the responsibility of the party in default to him." Note to Wright v. Bank, 6 Am. St. Rep. 365. Where a mule was wrongfully taken it was held that the injured party should have bought another, and could not recover the profits of the crop he would have made, if the mule had not been taken. Sledge v. Reid, 73 N.C. 440.

The court below erred in...