*1 with- inferred negligence fendant’s nothing BROS., DAVIS v. Inc. BOYLE There out additional evidence. principle arbitrary about or technical No. 908. except its name.” Appeals for the Court of wagon tongue present case the In the District of Columbia. by a circus Wagon attached to the Argued April 10, 1950. wagon still on the employee when the car, tongue attached remained flat and the May Decided 18, 1950. from wagon when was removed employee. wagon by
the car a circus tongue from became detached
end wagon immediately almost company’s
pulled the transfer truck-trac-
tor. No one that the railroad has claimed anyway
was in to blame or that dam-
age building to its resulted from an un-
avoidable accident. Either the circus negligent. company We transfer there was circumstantial
believe sufficient finding
evidence to court’s trial responsible.
that the circus owner was are of the also that holding
trial court was correct
agreement owner and between circus company indemnify
the transfer did not particular owner
circus acci para quoted
dent. is true that the last
graph of agreement was to the effect employee if a circus hitched
wagons company transfer trucks
accepted responsibility “full seeing wagons safely
the said properly however, whole, as attached.” Read
agreement was intended clearly include only the safe attachment of the transfer
company’s wag truck-tractors to the circus
ons and hauling grounds. to the circus tongues wag
Here the were attached to the
ons circus while on still tongues
railroad cars and from then on the
were as much part wagons
other attachment. If one the wheels example,
a wagon, for became detached operation,
during the we do not think-that company transfer could have been held
responsible, unless something it did caused
an accident. A like conclusion was reached
in Motor Service v. Sales & Grasselli Co., La.App. Chemical 131 So.
where the facts involved were similar.
Affirmed. *2 C., Washington, D. Friedlander,
Mark P. appellee. CAYTON, Judge, and Before Chief Judges. CLAGETT, Associate HOOD and CLAGETT, Judge. Associate abuse appeal in action This is an an judg- process summary of civil wherein in of defendant. granted ment was favor originally filed The case for the Dis- District Court United States denying defend- trict of After Columbia. complaint dismiss the ant’s motion to papers grounds (urged on stated statutory us) court under its before authority Mu- transferred the case nicipal thereof, Court “for trial Court, prejudice.” Municipal complaint conflicting considering the defendant, grant- plaintiff affidavits of ed, complaint, a with leave to amend the summary judgment. From the motion defendant, resulting' favor Davis, plaintiff, appeals. Geneva E. support- plaintiff’s In following affidavit recited: ing corporation, Defendant cause, previously filed an action in the Small Claims Branch of present Court wherein plaintiff present was indebted to purchased for merchandise at defendant’s complaint present plaintiff store. Davis, described as “Louise also as known Geneva Davis.” deputy attempt- A United marshal States present plaintiff to serve at her ad- ed office engaged as dress where she business public firm partner in a accountants. presence her In the clients plaintiff deputy marshál -asked “Louise Davis Geneva Davis.” present plaintiff day, being on that , deputy subsequent marshal returned at and effected service a similar man- time before store She never visited the ner. had defendant, had she ever au- nor credit, anyone pledge her nor thorized an alias such ever used as Louise C., had Fauntleroy, Washington, D. D. she. John being process served with C., After Davis. Edmond, Washington, D. L. Everett action, she visited the Claims in the Small appellant. VII, 1940, Supp. 11 — 756. 1. Code tion, of de- the sum of employee it exceed and informed store $3,000.” identity had that mistake fendant *3 conversation, em- this After made. Some jurisdiction requires it this prom- mistake and ployee acknowledged the application final judgment a the to sustain Claims Small present the plaintiff that ised the of rule of the case.2 Here the law of these Relying on suit would be dismissed. the was interlocu District Court’s order appear assurances, to defend did not she tory. Furthermore, pro it clear that the is suit, whereupon defendant Small the Claims litigants cedural of and these duties against Subsequently her. judgment took Municipal governed were by Court rules Claims the Small filed motion in she from the the filing time of case in that of alleging and reciting the above Court Municipal court. 51(b) pro rule Court had been tak- against her judgment the that party may vides that the move defending judgment and such fraudulently that en summary for any time. De judgment at and her social might used embarrass to fendant’s summary judgment, motion for community. in the professional standing therefore, supported by it as was an af judg- motion aside the'default to set fidavit, was different from the motion granted. defendant had ment Present was dismiss in the Mu District Court and the trial on merits the the case continued and nicipal Court judge right duty the had and had, unable to defendant was was but to consider and decide such motion. thereupon a vol- prove and took its case Plaintiff’s assignment is second untary nonsuit in the Small Claims action. trial court wrong in granting defend- that she had Plaintiff further been ant’s summary 'motion for judgment. We humiliated, and belittled embarrassed be- have concluded that error. clients, had been fore her Suits, 'process, of abuse civil to have de- employ forced to counsel under some circumstances called suits and to defend at judgment fault set aside prosecution, subject malicious have been trial, subsequent that the abuse of of in juris innumerable decisions various process wrongful had been reckless. According dictions. 899, to 150A.L.R. “In assignments Plaintiff makes two of er- majority at.least numerical ror, the first that the trial court erred in en- jurisdictions, it has held that an been action summary defendant’s motion tertaining prosecution of malicious will lie for the previous after the motion dis- institution of a civil action by miss had been the United States denied cause, probable and without though agree District We do not with Court. there has been no with the interference this contention. person or property of the defendant in the statute, applicable 1940, original special Supp. suit injury Code and no 'is VII, 756(a), providing shown.” The law jurisdiction, for the trans- in this how 11— ever, of certain has fer cases from District Court been established three deci Municipal part: of Court reads in sions Appeals “The United States of Court action, pleadings together with District such of Al Columbia Circuit. copy though upon prevalence the docket and of of entries or- some doubt of 'therein, the rule ders theretofore entered shall be elsewhere indicated a later decision, Municipal sent clerk of the said Court Peckham v. Union Court, deposit together costs, Co., App.D.C. 104, 105, with the Finance 60 48 F.2d 1016, case shall be called for trial 1017, in that held: “In our thereafter; promptly weight greater authority court and shall there- of in this coun try it had be treated as been filed reasoning support the better Court, originally in the said view no action lie ex- will for the recov cept jurisdiction ery damages prosecution court shall sustained malice, extend to the amount of a civil action claimed with ac- 537; Smelting, Refining Frigicfcaire Corp., United States v. U. cf. Marks 2. S. v. Sales 1950, 186, App.D.C. 359, & Min. 339 U.S. 974. Co.. 70 S.Ct. 54 F.2d present ar- action is no seems clear that the cause, has there when brought by prop- upon only pres- based one suit seizure person or rest plaintiff. present in- ent defendant, no erty of the Certainly neces- two suits. does involve sustained, would which jury If the v. is read to re- decision Soffos Eaton prosecuted all suits sarily result literally, And the trial court was correct. action.” causes like cover for yet in- action seems to us to U.S.App. Pence, 76 v. In Melvin might plus. volve what be termed one suit 426, 143 A.L. 157; F.Zd D.C. *4 something involves more than the usual v. Union Peclcham holding- of 149, the R. brought maliciously prob- suit and without but approval, cited with was Finance Co. commenced, ordinarily cause able which is mo "When malice that it decided was also defended, possibly appealed. Here, is and results in and claim groundless a tivates according allegations to the com- of the of beyond assertion injury plaint, original only the suit not entails, remedy afforded. is ordinarily maliciously brought probable and without be litigate right the to is not right to cause, brought but and served proceeding has the When nuisance. come a present plain- an alternative which name right of protection of to no relation Furthermore, tiff had em- never used. any public which he right or suitor the ployee of (whose agency the store is not vindicating, may a hand in reasonably have acknowledged denied) prom- and the error protection fails and he his the reason ised the that suit would be dismissed. respond.” must promise When this was broken and a de- Eaton, U.S.App.D.C. 306, v. In Soffos judgment fault taken and the default then 683, 682, 307, the court said: F.2d aside, present set defendant nevertheless right also said that ‘the to have “But we only continued the action took non- and nui- right the to become a is not litigate prove suit when it had been unable to its compelled of being burden to sance/ The judgment case aat trial. A was outstand- unconscionable suits is successive defend least, ing, against for a while at 'necessarily which would result one plaintiff, and such a is not an to recover like prosecuted suits all ordinary incident of an suit involved in of action.’ burden increases causes this kind of claim. proportion. arithmetical As the more than Torts, The Restatement of the Law of dissenting Court Vol. principle general states the § out, may points successive suits Appeals of as follows: point down wear even procures “One who initiates or the in- good why see no reason capitulation. We proceedings against itiation of civil another repeated tolerate abuse of should the law is liable to him the harm done there- processes. To redress allow its if by, seriously hamper the honest abuse will “(a) proceedings are initiated rights. supposed No one is assertion from likely litigating an hon- to be deterred “(I) probable cause, jury fear that some future est claim “(II) primarily purpose for a other than erroneously brought decide that he has may securing adjudication that of maliciously probable two suits based, claim on which the proceedings are accordingly hold one who We that cause. another twice sues except “(b) they parte, where ex are responsible cause is him in dam- probable to proceedings have in favor terminated Appellant’s ages. therefore against person they whom are brought.” upon claim which relief states Eaton, (In general Soffos under four In comment rule granted.” v. suc- brought, were the effect that although suits Restatement in order to cessive osten- plaintiffs, plaintiff but al- recover under the rule stated sibly by different instigated by something prove all had the must more than the mere that been leged proceedings the civil have in- parties.) fact that same says one is the an its that she who cause itiated without plaintiff and in who talked with at the store terminated have improper purpose plaintiff did, fact, purchase goods mate- either show “He must favor. his neither, .any- at the nor legal right store and she violation or the rial harm an, promised one else behalf of defendant sufficient is in itself which is- suit. Such latter withdraw the Small Claims Among the damages.” action for typical sues case for person of fact furnish á imprisonment are stated , trial and on motion brought, should not be settled proceedings whom against except land, summary judgment for a a hold- on possession of deprivation of his ing plaintiff to 'recover harm to is not entitled things, intangible chattels or as a all matter of law of her from to result reputation assumed his hold, allegations are found to be true. of the facts defamatory nature therefore, that the of the motion granting him. proceedings basis of that, for summary judgment harm are the error Among material harms the action court be remanded to the interference with should from the resulting *5 land, below for vendibility trial. use, enjoyment of his or things, and the ex- intangible chattels Reversed. necessary penditures reasonably to defend pur- proceedings.
himself HOOD, Judge Associate (dissenting). said, pose, as has been often is to strike agree I am unable to with the between free access to allowing balance the court. In Peckham v. Union Finance courts for the vindication of Pence, Co. and Melvin v. it was ruled that suit, resulting fear of a undue ex- maliciously civil action instituted right. ercise .of lay cause does not are convinced that pros foundation for action of malicious ordinary case the use aof so-called alias accompanied by ecution unless arrest of the naming in the of a defendant in suit is person, property seizure of or in Furthermore, not actionable the jury. per se. I do not understand that this rule allegation of making promise of a with repudiated Eaton,, in Soffos v. where allegation out the promise further specific holding was “that one who made without the of keeping intention twice sues another grounds it is not for a suit for fraud.3 The probable responsible cause is to him in dam alleged, therefore, probably would ages.” today’s This court in decision holds either suit for libel or slander plus” that “one suit is sufficient founda or deceit, one for yet here, fraud and action, tion for the and thus makes a new above, as we have'stated person á wrong jurisdiction. rule of law for this My ob alleged to have been sued and the suit was jection is not to its newness but to its in persisted in in promise violation of a definiteness. seems to me that the rule even after a default judgment was set today anyone announced will force filing a . circumstances, aside Under such we be civil action to take his chance on defend lieve that a cause of action was stated in the ing prosecution an action for malicious be although affidavit supporting peculiar of some cause feature or turn of not, perhaps, expertly most drawn. No exactly his case. two suits law follow short, present plaintiff we believe that' is at pattern the same do not and I think a liti least entitled .to a trial. lawyer gant compelled should be guess decision, required
Our constitute the course, only relates “plus” within the summary judgment. meaning motion for De rule an today this court. fendant has filed an nounced affidavit one of made C.J.S., Fraud, 3; Restatement, Contracts, §§ 12. 3. §