Smith v. King

• Decision Date: 06 March 1893
• Parties: SMITH v. KING.
• Court: Connecticut Supreme Court

26 A. 1059

62 Conn. 515

SMITH

v. KING.

Supreme Court of Errors of Connecticut.

March 6, 1893.

Appeal from court of common pleas, New Haven county; Doming, Judge.

Action by Theodore L. Smith against John King to recover damages for malicious prosecution. From a judgment entered on the verdict of a jury in favor of plaintiff, defendant appeals. Affirmed.

V. Munger and C. J. Atwater, for appellant.

W. H. Williams, for appellee.

FENN, J. This action, for a malicious prosecution of the plaintiff upon a charge of burning a private building, not a dwelling, belonging to the defendant, was tried to a jury in the court of common pleas for New Haven county, and resulted in a verdict and judgment for the plaintiff. The defendant appealed to this court. Many errors, both in relation to evidence, and to the charge of the court to the jury, are assigned. We will consider such as are most important, as briefly as possible, consistently with clearness.

The finding discloses that the parties were the owners of adjacent lands in Seymour; that on October 1, 1891, two ice houses on the defendant's land were discovered to be on fire; that the plaintiff and defendant had been acquainted for many years; that recently many controversies had arisen between them, and that they were not on friendly terms; that at the time of the fire the defendant was absent, and remained so until October 3, 1891, on which day, while still absent, he was first informed of the fire by his son, and thereupon immediately stated, publicly, that the fire was caused by the plaintiff; and that thereafter he sought only to find and procure evidence against the plaintiff, and which would tend to prove the plaintiff's connection with the fire. On the witness stand, in chief, and to his counsel's question, he testified that he had "every reason to believe it was he, only he; nobody else but him." He stated this as his reason: "We have been on such unfriendly terms for these last eighteen years that he has repeatedly annoyed me, and caused me trouble, during that period, and I know of no other person that I believe would injure me, in the destruction of my property." The complaint of the grand juror, on which the warrant against the plaintiff issued, was dated October 6, 1891. The finding states that the defendant, for the purpose of proving that he acted in good faith, and had reasonable ground for believing the plaintiff to be guilty of setting his building on fire, offered to prove what he did in the way of getting further and additional testimony after the prosecution had been begun, and also to prove statements made to him by third persons after the prosecution was begun, and from that time down to and including the day of the trial, and to show that during all that time the defendant was actuated by an honest belief in the plaintiff's guilt, us tending to disprove the allegations contained in the plaintiff's complaint; and for that purpose his counsel asked the defendant the following question: "Subsequent to that time, what further steps did you take to find further information, if any?" This, as well as similar questions, as to what further information he did obtain afterwards, connecting the plaintiff with the burning, were objected to and excluded. The defendant duly excepted, the court saying to the defendant's counsel: "You may offer all legitimate evidence of the guilt of Mr. Smith." Thereupon the defendant was asked whether his ice houses were insured, whether his dwelling house was insured, where he got his insurance policy, and what was the damage done him by the burning. The first two questions were answered in the negative; the witness adding that he got his dwelling insured October 6, 1891. The last two questions were objected to, and excluded, the defendant duly excepting. The defendant having further testified that he had seen wagon tracks since October 6th on an old road leading into the road to the ice house, as well as upon the latter road, his counsel offered to prove by him that within a week after the commencement of the prosecution he had a conversation with one Carpenter, since deceased, in which Carpenter told him that be bad seen the plaintiff, on the night of the fire, coming out from this old road. This testimony, on objection, was excluded, to which the defendant, duly excepted. The defendant also offered to prove that after the process was issued, and the prosecution begun, he submitted to Mr. Atwater, an attorney in Seymour, the testimony that had been submitted to the grand jury, and thereupon Mr. Atwater advised him, or gave him Mis opinion, as to the sufficiency of the testimony, and thereafter acted as his counsel, and that he was influenced as to his subsequent action by the advice of counsel, of which Mr. Atwater was one. This, on objection, was excluded, and exception duly taken. So, also, testimony concerning a conversation with a witness named Llewellyn, after October 6th, concerning a two-gallon oilcan which Llewellyn had testified that he had seen about two years previous on the plaintiff's premises, and which the defendant claimed to have found near the ice houses, was excluded, the defendant duly excepting. On the foregoing rulings, 12 of the assignments of error are based.

In reference to the offered evidence relating to the plaintiff's conduct after making the complaint, this court has said, in speaking of similar evidence, in Thompson v. Rubber Co., 56 Conn. 499, 16 Atl. Rep. 554: "The want of probable cause must be shown by facts and circumstances existing, and information which came to the defendant, at the time the prosecution was instituted. Facts subsequently transpiring, and information subsequently received, could not, from the nature of the case, influence his action at that time." And other authorities are to the same effect, namely, that evidence in favor of either plaintiff or defendant as to good faith, or the want of it, must be confined to the knowledge, or means of knowledge, which the defendant had before he acted, and by which his action was influenced. This the present defendant does not deny, as a general proposition, but contends that the case, as presented by the pleadings, was not the ordinary action for a malicious prosecution, as understood by the courts, but that it was far different; that the plaintiff did not claim to recover damages solely for the institution of the prosecution. The complaint alleges, in substance, not only the arrest of the plaintiff on October 6th, and his being held to bail to appear for trial before the justice, but that the defendant appeared before the justice, during the pendency of the complaint, on divers days named, down to and including January 16, 1892, and charged the plaintiff with having committed the crime of which he was so accused, and that he made the charge, and prosecuted the same, from motives of malice; and so the defendant insists that the damages claimed and recovered were hot merely for the institution of the prosecution, but also for the continued prosecution of it. The defendant cites Newell on Malicious Prosecution, (section 12,) in which it is said: "In actions for malicious prosecution, where malice is an essential element, the burden of proving which is upon the plaintiff, it is, as a general rule, sufficient to prove that the action was commenced maliciously. It is not necessary, to sustain the action, to show that the suit was maliciously continued, but the fact of such continuance may be shown for the purpose of increasing the damages." And so the defendant insists that there is a distinction between the institution of an action and its continuance, and that, since the continuance of want of probable cause, or of bad faith and malice, might be shown by the plaintiff to increase damages, information acquired pending the prosecution, creating probable cause, or inducing honest belief and consequent good faith, ought to be admitted to disprove malice, and to reduce damages. One difficulty, however, in supporting this contention, is that it is perfectly "evident that it is entirely an afterthought, and that the rejected evidence was offered for no such purpose as that for which it is now claimed that it was admissible. It was not offered in mitigation of damages, but in bar or defense of the action. There is no intimation in the defendant's pleadings that any claim would be made that his conduct, or the motives for his conduct, changed after the commencement, and during the continuance, of the prosecution. The first defense is that of denial; the second, justification from the beginning. Neither is there any such hint in the defendant's testimony. In addition to the statement which we have already repeated, he testified that as soon as he learned of the fire he believed the plaintiff guilty, and made no effort to find, and did not look for, any evidence against any one but the plaintiff; that he was influenced in his conduct by prejudice, and that he could not distinguish between the effect on his mind of the prejudice, and the effect of finding the can referred to, and of a handkerchief hereafter to be referred to; and finally...