Zinn v. Rice
| Decision Date | 22 June 1894 |
| Citation | 161 Mass. 571,37 N.E. 747 |
| Parties | ZINN v. RICE. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Charles W. Bartlett and Benj. L.M. Tower, for plaintiff.
Robert M. Morse and G.P. Wardner, for defendant.
The defendant contends that there was error in the admission and exclusion of evidence, and also in the instruction that, if the attorney acted maliciously when the matter was left with him for the purpose of bringing suit, the defendant was responsible for the malicious acts of his attorney in levying the excessive attachment, and must respond in damages, in the same way as if the malice had been that of his own personal creation and exertion.
1. The defendant now contends that if his attorney, without his knowledge or authority, and to gratify the personal malice of the attorney, made an excessive attachment, the defendant is not liable therefor, and that the distinction between the liability of a master for the malicious act of the servant in the course of his employment, and for the malicious act of the servant to gratify his personal malice, was not clearly presented in the instructions. Without discussing the distinction for which the defendant contends, it is enough to say, in overruling his exception, that the bill of exceptions discloses no evidence of personal hatred or ill will on the part of the attorney, or that he took advantage of his employment to secure any private end or advantage of his own or to gratify his own personal malice; and no request was made for instructions upon the point now relied upon, either before or after the instruction excepted to was given. The presiding justice was not called upon to deal with the precise question now raised, and, whatever may be the true rule to be applied where there is evidence that an agent has acted to gratify his own personal malice, the omission to deal with it in the instruction was not error. In the instructions--not excepted to, as to the defendant's personal conduct, "malice" had been defined, for the purposes of the case, as "acting in bad faith;" and the jury had been told that if the defendant, with the design to injure or oppress, by fixing an excessive ad damnum, went beyond what he believed to be necessary and proper to secure the payment of the judgment, which he might recover, by forcing payment of a sum larger than would otherwise be paid, he was not acting in good faith, and that that would warrant an inference that he was acting maliciously. In the instruction excepted to, they were told to apply the same test to the conduct of the attorney, and the substance of the instruction was that the defendant was as responsible for such malice on the part of his attorney as for his own. Under the circumstances, this did not harm the defendant. See Levi v. Brooks, 121 Mass. 501; Shattuck v. Bill, 142 Mass. 56, 7 N.E. 39.
2. Evidence was admitted, subject to the defendant's exception, that inquiries about the attachment were made of the plaintiff by mercantile agency reporters, and by people who sold him goods; also, evidence of conversations of neighbors with the superintendent of the plaintiff's store, and inquiries by them and by the employes as to what the attachment meant; also, of the fact that a creditor attempted to collect through a lawyer a debt, of which payment had been remitted to the creditor on the day it was due; also, a copy of the Banker and Tradesman, containing a notice of the attachment, with evidence of the circulation of that paper; and also evidence of the reports of commercial and trade agencies as to the attachment. Speaking generally of the evidence so admitted, all the circumstances which it...
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