Porter v. Mack & Boren.
| Decision Date | 17 December 1901 |
| Court | West Virginia Supreme Court |
| Parties | Porter v. Mack & Boren. |
1. Declaration Conspiracy Malicious Prosecution.
A declaration charging a conspiracy to sacrifice and destroy plaintiff's property and business by the malicious use of judicial proceedings must allege that such proceedings were instigated, instituted and prosecuted to a finality by the defendants without probable cause. (p. 583).
2. Conspiracy.
There can be no conspiracy to do that which is lawful in a lawful manner, (p. 583).
3. Malicious Doing Lawful Act Not Actionable.
The malicious doing of a lawful act in a lawful manner is not actionable. (p. 584).
4. Debt Judicial Proceeding.
If a person agree to pay the debt of another to a third party and either pay it or be in condition to pay it and having control of such third party's debt, wilfully ignoring his obligation, maliciously institutes judicial proceedings and carries them through to a finality in such third party's name for the purpose of sacrificing the debtor's property and destroying his business, such proceedings are without probable cause, and render such person liable to an action for malicious prosecution. If tnere are more than one of such persons they are liable in an action on the case for conspiracy in the unlawful use of judicial pro cess. (p. 589).
5. Payment Agent Malicious Prosecution Assumpsit.
If a person who has assumed to pay the debt of another be not in condition for any reason to do so, and at the same time he is the agent for the creditor and it is his duty as such agent to collect such debt off of the debtor, his performance of such duty by legal proceedings is not without probable cause, and will not render him liable to a suit for malicious prosecution, although the debt, interest and costs, may be recovered from him in an action of assumpsit, for breach of his contract, (p. 590).
6. Judicial Proceedings Probable Cause.
It is unlawful for a malicious purpose to institute judicial proceedings without probable cause. (p. 590).
7. Common Law Action Conspiracy.
The common law action of conspiracy is obsolete, and in lieu thereof an action on the case in the nature of a conspiracy has been substituted, (p. 591).
8. Grounds of Actton Judgment.
In such action the grounds or gravamen thereof, whether one or more, must be set out with the same certainty as though It were an action against a single defendant. Conspiracy is only added thereto as matter of aggravation or jointure and need not be proven, but judgment may be had against one defendant and the action discontinued as to the others. (p. 592).
9. Damages Final Judgment.
Where the damages claimed in two separate actions, to-wit, assumpsit and malicious prosecution, arise or result from the same acts of abuse or unlawful use of judicial procedure, a final judgment in one is a bar to the further prosecution of the other, although much greater damages might have been recovered in the latter than in the former. Such excess of damages is regarded as waived and the wrong fully satisfied by the judgment obtained in the former, and cannot be relitigated in the latter action, (p. 592).
10. Malicious Prosecution Statute of Limitations.
An action for malicious prosecution sounding in consequential and punitive damages, although affecting business and property is such a personal action as does not survive to the personal representative, and is barred by the statute of limitations after one year from the time when the right to bring the same first accrued. (p. 592).
11. Grounds of Action Separate Pleas.
Where two separable grounds of action are included in the same declaration, the defendant may file separate pleas as to each of such grounds of action. (p. 593).
12. Probable Cause Proof.
The want of probable cause is an essential averment in an action on the case for malicious prosecution, the proof whereof devolves on the plaintiff. (p. 593).
13. Sustaining Averment Pleading.
To sustain such averment the plaintiff must show such a state of facts as precludes a reasonable ground of belief in the minds of defendants warranting them to institute and maintain in good faith the alleged malicious proceedings, (p. 593).
14. Evidence Judicial Proceeding.
If the defendants being men of ordinary prudence believed in good faith from their own knowledge or understanding of the facts and circumstances or from information received from reliable sources that the judicial proceedings instituted by them were necessary and justifiable, they cannot be held liable, although it should be afterwards made to appear in a suit for that purpose by a preponderance of evidence that such proceedings were without just foundation, (p. 593).
15 Probable Cause Defendants Standpoint.
On the question of probable cause the facts and circumstances, knowledge and information, must be viewed from the standpoint of the defendants, and not that of the plaintiff, and if they in good faith, being men of ordinary prudence, entertained the reasonable belief that it was their duty to institute and maintain the proceedings complained of, they cannot be held liable therefor in an action on the case in the nature of a conspiracy for malicious prosecution. (p. 594).
16. Instructions to Jury.
When the law as applied to the facts shown in evidence is plainly for the defendants, the court should instruct the jury to return a verdict accordingly. (p. 595).
Error to Circuit Court, Hancock County.
Action by John Porter against John M. Mack and another. Judgment for plaintiff, and defendant Greenberry B. Boren brings error.
Reversed.
Caldwell & Caldwell, Shiras & Dickey, D. F. Patterson and Faulkner & Walker, for plaintiff in error.
W. P. Hubbard and Henry M. Russel, for defendant in error.
John M. Mack and Greenberry B. Boren, defendants, feeling aggrieved by the judgment of the circuit court of Hancock County against them in favor of John Porter for the sum of eighteen thousand three hundred and thirty-three dollars, assign three hundred and fifty-four reasons why such judgment should not be permitted to stand.
The first is the overruling of the general demurrer to the declaration, that is to say, admitting its allegations to be true, they fail to show a sufficient cause of action against defendants. The action is trespass on the case in the nature of a conspiracy to destroy plaintiff's business. The conspiracy must be to do some unlawful act for the purpose of maliciously injuring the plaintiff in person or property. The gist of the action is the injury produced, the gravamen the unlawful act done or per- formed for the purpose of affecting the injury. There can be no conspiracy to do that which is lawful, although it be done maliciously and operates to injure another in person or property. 6 Am. & En. En. Law (2d Ed.) 872, 875; Cooley on Torts 93; Jenkins v. Fowler, 24 Pa. 308; Bay croft v. Tayntor, 68 Ver. 219; Phelp v. Newlen, 72 N Y. 39; Iron Co. v. Uhler, 75 Pa. St. 467.
Owing to its rare character the law regarding this kind of an action has not been well defined, and the decisions of the courts have produced some confusion in regard thereto. The principal authorities maintain that the common law action of conspiracy is obsolete and that there has been substituted therefor an action on the case in the nature of a conspiracy. That the allegation of conspiracy is mere matter of aggravation and need not be proven except to fix the liability of several defendants, and does not change the nature of the action from one purely on the case, subject to all the settled rules of such action. Parker v. Huntington, 2 Gray (Mass.) 124; Hutchins v. Hutchins, 7 Hill (1ST. Y.) 107; Kimball v. Harman, 34 Md. 407; Savile v. Roberts, 1 Ld. Raym. 374; Boston v. Simmons, 150 Mass. 461; Laverty v. Barnsdate, 65 Pa. St. 507; Jaggard, Torts, 639; Cooley, Torts, 125.
It is also held that the ground of action must be sufficient independent of the charge of conspiracy. Unless it is good as a separate ground of action against one defendant it cannot be good against two or more. Adler v. Fenion, 24 How. 407; cases before cited.
The following cases to some extent show an unreliable departure from the foregoing rules: In Griffith v. Ogle, 1 Brim. (Pa.) 175, it is said that, "Conspiracy is the gist of the action." This is directly contradictory to the great weight of authority. 6 Am. & En. En. Law (2d Ed.) 873. In Van Horn v. Van Horn, 52 N. J. L. 284, and 53 1ST. J. L. 574, it was held that in an action on the case in the nature of conspiracy to drive the plaintiff out of business by defamation, it was not necessary to set out the words spoken or the libelous matter published, as the action was not one of slander, and the court might have added also of libel. But how under such a declaration could the plaintiff possibly recover against one of the defendants and if he could not recover against one separately, he could not recover against all combined. In short, the declaration must, leaving out the con- spiracy charged, make a good case against one of the defencfants, and if it be not good against one, it is not good against all. Hence the ground or gravamen of the action, whether single or several, must be set out with the same certainty as in an action against a single defendant for the same character of action, whether it be libel, slander, assault and battery, malicious prosecution or false imprisonment, for the judgment may be against the single defendant without proof of the conspiracy. The nature of an action cannot be changed by simply alleging a conspiracy which need not be proven except as mere matter of aggravation or to extend the liability therefor to other defendants. An action of slander cannot be maintained against two defendants, for each is severally liable for the words spoken by him. Yet where two or more persons conspire to ruin another by slanderous utterances, they may be joined in the same action. But it...
To continue reading
Request your trial