Smith v. Michigan Buggy Co.

• Decision Date: 24 October 1898
• Citation: 51 N.E. 569,175 Ill. 619
• Parties: SMITH v. MICHIGAN BUGGY CO.
• Court: Illinois Supreme Court

175 Ill. 619

51 N.E. 569

SMITH

v.MICHIGAN BUGGY CO.

Supreme Court of Illinois.

Oct. 24, 1898.

Error to appellate court, First district.

Trespass on the case by Alfred A. Smith against the Michigan Buggy Company. From a judgment of the appellate court (66 Ill. App. 516) affirming a judgment for defendant, plaintiff brings error. Affirmed.Smith, Shedd, Underwood & Hall, for plaintiff in error.

Meek, Meek & Cochrane, for defendant in error.

This is an action of trespass on the case, begun by the plaintiff in error against the defendant in error in the circuit court of Cook county on March 3, 1893. The action is brought for the purpose of recovering damages for the alleged malicious prosecution of an ordinary civil action without probable cause by the defendant in error against the plaintiff in error. The defendant below (the defendant in error here) filed a general demurrer to the declaration. This demurrer was overruled, and a plea of not guilty was filed to the plaintiff's declaration. A trial was had before the court and a jury. After the introduction by the plaintiff in error (who was the plaintiff below) of all his testimony, the defendant in error moved the court to take the case from the jury, without introducing any evidence whatever on its behalf. This motion was based upon two grounds: First, that such cases as the present are not maintainable in the state of Illinois; second, upon the ground that the evidence did not show a want of probable cause, or, in other words, did show that there was probable cause. After hearing the arguments of counsel, the court instructed the jury that the evidence did not establish a case on which the plaintiff was entitled to recover, and that their verdict should be in favor of the defendant. The action of the court in giving this instruction was duly excepted to by the plaintiff. Thereupon the jury returned a verdict of not guilty, and, after overruling a motion for new trial made by the plaintiff, judgment was rendered in favor of the defendant and against the plaintiff for costs. The plaintiff below (the present plaintiff in error) took an appeal to the appellate court. The appellate court has affirmed the judgment of the circuit court, and the present appeal is prosecuted from such judgment of affirmance. The original action, for the alleged prosecution of which without probable cause the present action is brought, was begun by the defendant in error against the plaintiff in error on February 1, 1892, in the county of Kalamazoo, in the state of Michigan. The Michigan suit so begun by defendant in error against plaintiff in error was an action of trespass on the case, in which a declaration was filed by the Michigan Buggy Company, and a plea of not guilty by Smith. That action was tried in Michigan before the court and a jury, and the jury returned a verdict in favor of the defendant therein (the plaintiff in error here). The Michigan Buggy Company, the present defendant in error, was a corporation organized under the laws of Michigan, having its place of business and principal office at Kalamazoo, in that state. From July, 1891, up to February 1, 1892, the plaintiff in error, Smith, had been in the service of the defendant in error, the Michigan Buggy Company, as a traveling salesman. By his contract of employment, the territory over which he was required to travel in order to sell the buggies and carriages manufactured by the defendant in error was the state of Illinois. The suit brought against the plaintiff in error by the defendant in error in Michigan was for the purpose of recovering damages for fraudulent representations alleged to have been made by the plaintiff in error to the defendant in error in order to obtain employment with it. The declaration in the Michigan action charged that the plaintiff in error had represented that during two years prior to his employment by defendant in error he had sold, while employed by another company engaged in manufacturing carriages, by the name of the Abbott Buggy Company, from $60,000 to $65,000 worth of buggies and carriages per year in each of said two years among his friends and acquaintances in Illinois. The declaration in that suit also alleged that the plaintiff in error had represented to the defendant in error that the persons among whom he had made such sales were his friends and acquaintances, and that he could control their trade, and turn it over to the defendant in error, if the defendant in error would employ him as requested, and that he furthermore represented that he was a first-class salesman in the line of the business in which the defendant in error was engaged, and that he could sell for the defendant in error as many buggies and carriages per year as he had sold for the Abbott Buggy Company during the two years in which he had been engaged in making sales for the last-named company. The declaration then charged that these statements and representations were false, that the plaintiff in error had not sold as many goods within the time stated as he represented, that he was not able to control such a trade as he represented that he could control, and that he was not such a first-class salesman as he represented himself to be. It was also alleged in such declaration that through these representations the defendant in error had been induced to make a contract with the plaintiff in error, and to pay him large sums of money, and that the defendant in error had thereby suffered and sustained a great amount of loss, etc.

MAGRUDER, J. (after stating the facts).

The suit which was begun by the defendant in error against the plaintiff in error in Michigan was an ordinary civil suit, and resulted in favor of plaintiff in error. It is alleged in the declaration in the case at bar that the suit in Michigan was a malicious prosecution, and without probable cause; but it is not alleged or claimed that in that suit the plaintiff in error was arrested, or that any of his property was seized, nor does it appear that the plaintiff in error therein suffered any special damage, over and above the ordinary expenses and trouble which are attendant upon the defense of an ordinary civil suit. The question, therefore, which is presented in this case, and the only question which we deem it necessary to consider, is whether damages can be recovered for the malicious prosecution without probable cause of an ordinary civil suit, begun by personal service of process, and unaccompanied either by an arrest of the person or by seizure of property. It is well settled that malicious prosecution is a proper action for the recovery of damages for the institution of a civil suit with malice and without probable cause, where the defendant is deprived of his personal liberty, or where there is an attachment or seizure of his property. But whether malicious prosecution will lie in such case in the absence of any interference with personal liberty, and in the absence of any seizure of property, is a question upon which the authorities are very much divided. The question above indicated has never been squarely decided in any case that has come before this court. In Gorton v. Brown, 27 Ill. 489, it was held that an action could not be maintained for maliciously suing out a writ of injunction. The conclusion reached in that case, however, was based mainly upon the ground that the party had a sufficient remedy upon the injunction bond given when the injunction was obtained, and that such bond was designed by the statute to cover the demages suffered by the party enjoined. But the drift of the opinion in that case was against the maintenance of an action for malicious prosecution without probable cause of an ordinary civil suit, unaccompanied by arrest or seizure of property. In Gorton v. Brown, supra, we said (page 493): ‘We are well aware that elementary writers and respectable courts have held that an action on the case will lie for an abuse of the process of the courts, where special damages are alleged, and against a party for prosecuting a causeless action, prompted by malice, by which the defendant has sustained some injury, for which he has no other recourse or remedy. Such actions, however, for the most part, are actions wherein arrests have been made, and bail demanded, or the party put to some other expense and inconvenience, which cannot be compensated in any other mode than by an action. Such actions, except where a malicious arrest is charged, are not favored by the courts, and ought not to be; for, in a litigious community, every successful defendant would bring his action for a malicious prosecution, and the dockets of the courts would be crowded with such suits.’ The question here under consideration has been much discussed of late years in legal periodicals and in textbooks, as well as in judicial decisions rendered by the courts in many of the states. We have examined the discussions upon this subject with great care, and are inclined to hold in accordance with the...