Verdi v. Donahue

• Citation: 99 A. 1041,91 Conn. 448
• Court: Supreme Court of Connecticut
• Decision Date: 21 February 1917
• Parties: VERDI v. DONAHUE.

99 A. 1041

91 Conn. 448

VERDI

v. DONAHUE.

Supreme Court of Errors of Connecticut.

Feb. 21, 1917.

[Copyrighted material omitted.]

Appeal from Court of Common Pleas, New Haven County; Isaac Wolfe, Judge.

Action by Clementi Verdi against Hugh R. Donahue. There was judgment for plaintiff, and defendant appeals. No error.

The action is to recover damages for a malicious prosecution, and was tried to the jury.

Charles S. Hamilton, of New Haven, for appellant. Robert J. Woodruff, of New Haven, for appellee.

RORABACK, J. The plaintiff in his complaint alleges that on October 13, 1915, the defendant stated to James W. Callahan, a police officer of the city of New Haven, that the plaintiff had committed the crime of assault and battery upon him, and had abused him, and that the defendant requested the officer to arrest the plaintiff for this offense; that afterwards the defendant caused the complaint to be issued by the city attorney of New Haven, charging the plaintiff with a breach of the peace and of assaulting and striking the defendant; that the plaintiff was arrested upon this charge and brought before the city court of New Haven; that the defendant appeared before the city court of New Haven and charged the plaintiff with having committed the crime with which he was accused and testified as a witness in this cause; that this charge was in fact false; that the plaintiff, in the trial before the city court, was acquitted and discharged; that the plaintiff made this charge from motives which were malicious; and that there was no reasonable or probable cause for this contention. It was also alleged in the plaintiff's complaint that he had suffered $1,000 damages because of this prosecution.

The answer, in effect, denies all of the allegations as above stated.

The reasons of appeal are numerous. They criticize the action of the trial court in the charge as it was made, in its refusal to charge as requested, and in its rulings upon evidence.

The defendant complains of the charge as it relates to the burden of proof in which the jury were told in substance that a fair preponderance of the evidence does not necessarily mean the number of witnesses who have testified to a given fact or state of facts, but rather that evidence which, in your judgment, is the superior evidence; that evidence which in your judgment is more likely to be in accord with the facts; that part of these instructions down to and including the words "superior evidence" was in harmony with the well-recognized rules upon this subject and correct. See Words and Phrases (Second Series) pp. 1150, 1151.

The words which follow, to wit, "that evidence which in your judgment is more likely to be in accord with the facts," is but a different expression of the same idea. The general instructions of the court upon the question of the preponderance of evidence, when read together, were too plain to be mistaken, and the general tenor of the charge was such that it is apparent that the jury could not have been misled by the remarks of the court upon this part of the case.

The trial judge, in the discussion of the question of malice, stated to the jury, in effect, that the defendant's conduct in following up the plaintiff into his other employments, subsequently obtained, and in attempting to secure, or in securing, his discharge from such employments or employment, should be considered for the purpose of determining whether the plaintiff had proved that in whatever the defendant might have done at the time in question, he was actuated by malice, or whether his conduct was free from malice. In this there was no error. The record discloses that evidence was offered tending to show that upon two different occasions, after the plaintiff was arrested, the defendant was instrumental in securing his discharge.

Evidence of the conduct, admissions, and declarations of a defendant occurring after the time of the original proceeding may, in many cases, be given in evidence as tending to prove intent when the question of malice is involved. Elwell v. Russell, 71 Conn. 462, 465, 42 Atl. 862; Green on Evidence (12th Ed.) vol. 1, § 53, p. 64; Steven's Digest on Evidence,' 20, 22; Encyclopedia on Evidence, vol. 8, p. 370.

Two reasons of appeal are based upon the theory and claim that the court erred in instructing the jury that an action of malicious prosecution could be maintained when it appeared that the plaintiff was already arrested at the time when the defendant made the complaint to the attorney of the city court. The difficulty with this contention is that it is not supported by the record. It appears that the plaintiff offered other evidence and claimed to have shown that the defendant alone brought about the arrest, prosecution, and trial of the plaintiff in the city court by which he was acquitted. In this connection, the trial court stated to the jury that such action upon the part of the defendant would make him the instigator of the prosecution. Of this the defendant has no reason to complain.

The only instructions upon the subject of damages criticized by the defendant in his appeal are those in which the jury were informed that:

"Upon the question of damages you will consider the motive or intent that the defendant may have had in acting as he did, and whether such act on the part of the defendant was an honest mistake made in the performance of a public duty, or whether it was maliciously or purposely done."

These instructions taken alone did not embody a clear and adequate statement of the law for the proper guidance of the jury upon the question of damages, but they do not stand alone upon this proposition. It appears that, immediately after the statements above quoted, the court went on to say that:

"The law usually looks to the motive of a man's acts and does not punish him who acts honestly, though mistakenly, as it does him who acts designedly and maliciously."

These remarks when read together are not objectionable.

It appears that the court, in instructing the jury upon the question of damages, also explained to them the elements of compensatory damages which they might consider. The court did not stop here in its remarks upon this branch of the case. It also explained at length the law relating to exemplary damages. What was said upon the matter of compensatory and exemplary damages may not have been well guarded and strictly accurate, but it does not follow that a new trial should be granted for the reason that the record discloses that no criticism of the court's remarks, relating to compensatory or exemplary damages, was made in the reasons of appeal.

The defendant submitted 15 requests to charge, which covered about seven pages of the record. Complaint is made that each of these requests was not complied with. The record discloses that 14 of...