117 Va. 480 | Va. | 1915
delivered the opinion, of the court.
The plaintiff in error, Luther Craft, was arrested, tried and found guilty by the police justice of the city of Norfolk of petit larceny upon a warrant issued by a justice of the peace of said city, upon the complaint of the defendant in error, James Moloney, trading as Moloney Belting Company, and Albert E. Anderson, charging the accused with grand larceny of certain goods and chattels of the value of fifty dollars. Upon án appeal to the Corporation Court of the city of Norfolk the judgment of the police justice was reversed and the accused acquitted; and thereupon he instituted this action of trespass on the case against defendants in error for malicious prosecution.
The declaration in the case was twice amended, and to the second amended declaration there was a demurrer, which the court sustained and dismissed the case, the plaintiff declining to further amend his declaration.
The declaration as amended séts out the issuance of a warrant, the arrest of the plaintiff, the search of his residence, resulting in injury to his wife, makes claim for her mental anguish, loss of her services and companionship, etc., and then alleges that the plaintiff was taken before the police justice, “and there the said defendants, by means of evidence which they knew to be false, caused the said plaintiff to be convicted of petty larceny.” Then is set out the appeal and acquittal of the plaintiff. '
Several grounds were relied on as sustaining the demurrer, but we deem it only necessary to consider three of them, namely: (1) The declaration sets out a conclusion of law and not of fact; (2) it does not set out the false statements which it is alleged that the defendant knew to be false; and (3) it discloses on its face that the defendants had probable cause.
The declaration in this case, in order to avoid the force and effect of the disclosure upon its face that the plaintiff was by the police justice found guilty of the crime which is the basis of this action, so amended his declaration as to make his charge read, “and there the said defendants, by means of evidence which they knew to be false, caused the said plaintiff to be convicted of petty larceny.” The sole question, therefore, for consideration here is, whether that allegation is sufficient to meet the requirements of such a declaration, as set forth in the case of Saunders v. Baldwin, supra.
In Phillips v. Village of Kalamazoo, 53 Mich. 33, 18 N. W. 547, the pleading showed a conviction, and the court said: “As a general rule a conviction before a magistrate is a bar to malicious prosecution, and if the party complaining relies on an exception to it, he must allege the facts which create the exception. Cooley, Torts, 185.”
And in Blucher v. Zonker, 19 Ind. App. 615, 49 N. E. 911, the complaint charged that the conviction was obtained through fraud and in addition to using the word “fraud” it was alleged that the plaintiff had not committed any crime, and that the defendant knew this, but in order to coerce plaintiff into settling a civil controversy, had instituted the prosecution; and the court held, that “The facts stated do not show fraud or collusion.”
As it seems to us, the charge in the declaration here,, that the defendants, by means of evidence which they knew to be false, caused the plaintiff to be convicted, is merely
It has been over and over held that facts in such a declaration must be pleaded, and not merely conclusions of law. The object of a declaration is to set forth the facts which constitute the cause of action, so that they may be understood by the party who is to answer them, by the jury who are to ascertain the truth of the allegations, and by the court who is to give judgment uppn the jury’s verdict. B. & O. R. Co. v. Whittington’s Admr., 30 Gratt. (71 Va.) 805; Hortenstein v. Virginia-Carolina Ry. Co., 102 Va. 914, 47 S. E. 996.
Had the declaration in this case charged that the conviction was obtained by fraud, instead of merely by testimony which the defendants knew to be false, under the rule laid down in Dickenson v. Bankers Loan Co., 93 Va. 498, 25 S. E. 548, the charge of fraud without stating the facts which constituted the fraud, would have been insufficient. By electing to set up that the conviction was ob-. tained by testimony which the defendants knew to be false, the plaintiff brought his case within the rules governing an action for false representations, and in that class of cases it is well settled the false representations must be set out. 20 Cyc. 98; Scott v. Boyd, 101 Va. 28, 42 S. E. 918.
It might well be asked in this case, as there is nothing in the declaration to give that information, who gave the false testimony, the defendants or others? If others, did the defendants suborn them to testify falsely? What were the false statements? All which information the defendants were entitled to, and those facts were, essential, not only to the plaintiff’s right of recovery, but to his right to maintain his action.
In Crescent City, &c. Co. v. Butchers’ Union, &c. Co., 120 U. S. 141, 7 Sup. Ct. 472, 30 L. Ed. 614, Mr. Justice Matthews, in discussing the rule which declares that the judgment or decree of a court having jurisdiction of the parties and of the subject matter, in favor of the plaintiff, is sufficient evidence of probable cause for its institution, although subsequently reversed by an appellate tribunal, says, that the rule “was not established out of any special regard to the person of the party,” and that
In speaking of the rule as not justifying a general and indefinite mode of declaring, admitting of almost any proof, the opinion in B. & O. R. Co. v. Whittington, supra, has this to say: “A declaration can, however, subserve no good purpose unless it be sufficiently specific to inform the adverse party of the ground of the complaint. If it is deficient in that particular, it may as well be dispensed with altogether. The plaintiff is presumed to have some knowledge of the facts upon which his action is founded. If he is in doubt as to the precise nature of the evidence, he may
The declaration in the case in judgment contains but one count and in the light of the authorities to which we have referred, is wholly insufficient to meet the requirements of a declaration in such a case. The judgment of the Court of Law and Chancery of the city of Norfolk, sustaining the demurrer thereto and dismissing the case, is plainly right and must be affirmed.
Affirmed.