121 F. 233 | 5th Cir. | 1903
Having stated the case as above, the opinion of the court was delivered by
The foregoing statement shows a case of conflicting facts and evidence as to the want of probable cause in suing out the writs of attachment complained of and as to the actual and inferential malice of the defendants in suing out the same, which should have been submitted to a jury.
In Alsop v. Lidden, 30 South. 401, 403, the Supreme Court of Alabama defined probable cause for suing out an attachment as follows:
“Probable cause is sucb a state of facts and circumstances as would lead a man of ordinary caution and prudence, acting conscientiously, impartially, reasonably, and without prejudice, to believe that some one of the grounds for, the suing out of the writ existed. And in deciding upon the existence of probable cause the plaintiff’s belief in the existence of a ground for the attachment cannot be considered, nor the existence of such facts as might have influenced his judgment; but the test is the effect they might have upon the judgment of ordinarily prudent and reasonable men. These definitions exclude all idea that mere suspicions and belief, however honestly and intensely entertained, unsupported by facts known to the plaintiff in attachment, which would have justified reasonable and cautious men in believing the defendant had been guilty of some act creating a ground of attachment, constitute probable cause. ‘A party may, in extreme eagerness to collect a debt or to obtain security for it, without probable cause resort to an attachment; and the absence of probable cause, coupled with the unlawful act of suing out the writ, is a vexatious or malicious abuse of the process.’ Durr v. Jackson, 59 Ala. 210. ‘Malice may sometimes be inferred from the want of probable cause.’ Jordan v. Railroad Co., 81 Ala. 226, 8 South. 192.”
As a general rule, the question of probable cause may be for the court; yet, where it depends on disputed facts and conflicting evidence as to defendant’s good faith and just belief, the question is for the jury. “It is true that what amounts to probable cause is a question of law in a very important sense. In the celebrated case of Sutton v. Johnstone the rule was thus laid down; ‘The question of probable cause is a mixed question of law and of fact. Whether the circumstances alleged to show it probable are true, and existed, is a matter of fact; but whether, supposing them to be true, they amount to a probable cause, is a question of law.’ This is the doctrine generally adopted. McCormick v. Sisson, 7 Cow. 715; Besson v. Southard, 10 N. Y. 236. It is, therefore, generally the duty of the court, when evidence has been given to prove or disprove the existence of probable cause, to submit to the jury its credibility, and what facts it proves, with instructions that the facts found amount to proof of probable cause or that they do not. Taylor v. Williams, 2 Barn. & Adol. 845. There may be, and there doubtless are, some seeming exceptions to this rule, growing out of the nature of the evidence — as when the question of the defendants! belief of the facts relied upon to prove want of probable cause is involved. What their belief was is .always a question for the jury.” Stewart v. Sonneborn, 98 U. S. 187, 194, 25 L. Ed. 116.
The plaintiff’s evidence makes a prima facie case to the effect that at the time the writs were sued out the plaintiff was solvent; that it was not removing its property from the state, nor had the defend
The defendants met this prima facie case by the proposition that the plaintiff corporation, though transacting with defendants and others for years a large business in Florida, with all of its property and a resident agent there, was actually a nonresident of the state; by conflicting evidence as to the breaches of the lumber contract by the plaintiff, and as to the amount actually falling due from the plaintiff under the contract for logs delivered; as to the transactions and negotiations between the parties during the life of the contract leading up to the issuance of the attachments; and as to the ability of the defendants to have carried on their deliveries of logs under the contract to show the damages suffered from the alleged breach. The defendants supplemented their case by showing that prior to the issuance of the attachments they took the advice of their own attorney, learned in the law, who was also secretary and a director in the lumber company, and by the admitted evidence of the defendants Ambler, Meigs, and Lfiggett to the effect that they acted in good faith, without malice.
The trial judge gave no reasons, preserved in the record, for directing a verdict, and whether he relied upon particular of the grounds assigned in the motion or upon the ■ whole combined we are not advised.
As to the writ of attachment for $9,980.80, the first and third grounds relate to the matter of probable cause, assuming that the plaintiff had failed to prove want of probable cause, and that the case showed the existence of probable cause for suing out the writ. As noticed above, the case shows that this writ was sued out prematurely, and for an amount more than to eventually become due the plaintiff; and in the sum thereof was included a draft for $5,340.75, which was not owned by the lumber company (see May v. Vann, 15 Fla. 554), and there was other evidence tending to show the want of probable cause.
The fourth ground charges that it appears from the undisputed evidence that at the time the writ was sued out the defendants believed, and had reasonable grounds for believing, that the plaintiff was indebted to them in the sum of $9,980.80. A sufficient answer to this is that there is no such undisputed evidence.
The fifth ground relates to the matter of malice, asserting that it appears that the Atlantic Lumber Company was advised by counsel learned in the law that they had a right to include in the amount of their attachment the draft of $5,340.75 held by the National Bank of Jacksonville, followed with admission that the writ was prematurely issued; and the sixth ground relates to the same matter,' charging that it appears from the undisputed evidence that the defendants acted on the advice of counsel, and were advised that they had aright to sue out said writ of attachment. We understand that the question of advice of counsel in instituting and prosecuting a suit goes to affect the question of malice, which, in suits of this kind, is a question for the jury; but in relation to this particular case we deem it proper to say that the question was one particularly for the jury, because the counsel whose advice was alleged to' have been given and taken was a director and secretary of the lumber company, and it is, to a certain extent, the question of a person advising himself in his own interest. We think it reasonably clear that a lawyer “learned in the law” cannot advise himself as to the right and propriety of suing out an attachment, and, when prosecuted for suing it out maliciously, rebut all malice by showing that he advised himself. As to the effect to be given to the advice of interested counsel, see Watt v. Corey and Ricken, 76 Me. 87; Plow & Manufacturing Co. v. Jones & Co., 71 Iowa, 234, 238, 32 N. W. 280.
As to the second writ of attachment the motion presents some dissimilarity in grounds. The first and second are not supported by the evidence.
The third — in regard to the $75,000 attachment — merely claims that it appears from the evidence (not the undisputed evidence) that “the Atlantic Lumber Company had probable cause for suing out the writ of attachment;” and the fourth is that “it appears from the overwhelming weight of the testimony in the case” that the defendants had no malice in suing out the said writ of attachment, but sued the same out in a reasonable and honest belief that they had a cause of action against the plaintiff for which a writ of attachment might issue. Clearly, these questions were matters for the jury.
The fifth ground deals again with what is called “overwhelming weight of the evidence” to the effect that the plaintiff owed the lumber company on account of logs delivered prior to that time; that the failure to pay the amount due for the logs was a breach of a" substantial provision of the log contract; that it appears from the undisputed evidence that the defendants entertained an honest and
The sixth ground of the motion relates to the advice of counsel, asserting that it appears from the evidence that prior to October 1, 1897, Arthur Meigs, general manager of the company, submitted all the material facts of which he had knowledge, or which he could obtain by diligent inquiry, to a licensed and reputable attorney at law, and was advised that under conditions similar the lumber company had the right to sue out attachment for $75,000, etc. What we have hereinbefore remarked as to advice of counsel as proven in this case continues to apply.
The seventh and last ground of the motion claims that the defendants acted under an honest and reasonable belief that the Bucki Lumber Company was indebted to the Atlantic Lumber Company in the sum of $75,000, and that the said Atlantic Lumber Company had the right to proceed to recover said indebtedness by a writ of attachment against the property of the said Bucki & Son Lumber Company. It may be that they did act under an honest and reasonable belief; but whether they did or not, under the evidence of this case, it could only be determined by a jury.
The writ of attachment for $75,000 was prematurely issued, even on the theory that there had been such a breach of the contract as entitled the Atlantic Lumber Company to consider the same abrogated, and claim as damages contingent and prospective profits. In this connection the question is urged as to whether the Atlantic Lumber Company had any right under Florida law to sue out a writ of attachment for unliquidated damages made up of prospective and con- ■ tingent profits, and arising out of the breach of the contract. The affidavit for the attachment asserts that $75,000 was actually due, and the declaration propounds a claim for no specific liquidated damages, but for $200,000 unliquidated damages. We do not find that the question has been decided by the Supreme Court of the state of Florida in construing the attachment laws of that state, but we do ' find that the attachment laws provide for a creditor and a debtor and •an amount actually due. We have been furnished with very able
“23. In the cases above cited, where the damages were unliquidated, it will be observed that the contracts for breach of which suits were brought afforded a rule in themselves for ascertaining the damages, and upon this ground the actions were sustained. But where such is not the case, it has been considered that attachment cannot be resorted to, as will appear in the next three sections.”
Paragraph 13 of the log contract stipulates reciprocally $75,000 as liquidated damages for the breach of the contract. As to the effect of such stipulation, see Sun Printing, etc., Association v. Moore, 183 U. S. 642, 646, et seq., 22 Sup. Ct. 240, 46 L. Ed. 366. Whatever effect this stipulation should have in determining the right of the Atlantic Lumber’ Company to a writ of attachment for $75,000 liquidáted damages, based on a breach of the log contract — a question we pass over as not necessarily presented on this record — it certainly furnishes no sufficient ground for holding that there was probable cause shown by the evidence in this case for suing out the attachment for $75,000.
It seems clear that no one of the grounds on the motion to direct a verdict by itself, nor all combined, warranted the court in its action, and therefore, and for the reasons hereinbefore given, we conclude that the court erred in directing a verdict for the defendants.
Although the conclusion reached renders it necessary to reverse the case, there are assignments of error presenting rulings on the trial, which, in view of the new trial to be awarded, ought to be passed upon. We will deal with them seriatim.
The first assignment complains of the ruling of the court denying the plaintiff leave to file an additional count averring the wrongful and malicious prosecution of a common-law suit for $200,000 damages, the filing of which was sought on the ground that it would eliminate from the trial of the action embarrassment which might otherwise arise upon the contention of the defendants that the damages suffered and complained of were not solely upon the wrongful suing out of the attachments. The mattér of allowing amendments to pleadings is one within the discretion of the trial court, unless some statute intervenes. No statute is cited, and we see no reason to hold that the trial judge abused his discretion. See Vol. 1, Ency. PL & Pr. 524 et seq., for authorities.
The second assignment of error is to a ruling and order of the court requiring plaintiff to produce certain of its books kept in New York and certain other books specified in the exception in advance of the trial. Section 724 of the Revised Statutes [U. S. Comp. St. 1901, p. 583] provides for such orders in cases and under circumstances where parties might be compelled to produce the same by ordinary rules of proceeding in chancery. The grounds of the motion to produce in this instance were that the defendants expected to obtain from said books evidence tending to show that the plaintiff was on October 1, 1897, insolvent, and not realizing any profit out of its
The third assignment of error is to the disallowance of plaintiff’s peremptory challenge to a juryman after the court had allowed two of plaintiff’s challenges and the plaintiff had tendered the panel, reserving the right to exercise its third peremptory challenge after the defendant should have accepted the panel or challenged one of the members thereof. If there was any error in the court’s ruling in this respect, it is not likely to occur in a second trial.
The fourth, fifth, .sixth, and seventh assignments relate to the admission of and the refusal to admit certain evidence of doubtful relevancy, tending rather to complicate the case than prejudice either one of the parties.
The eighth and ninth assignments of error complain of the court overruling objections to evidence tending to show .what disposition was made of the attached property after release and bonding of the same. In our opinion, these objections should have been sustained, as the evidence appears to be wholly irrelevant, and not tending in any wise to show probable cause or absence of malice in suing out the attachments.
The tenth assignment of error complains of ruling out plaintiff’s question to his own witness in regard to the item, “Services of an architect in the cost of the mill.” In reality it was the refusal of the court to permit the witness to explain. When another trial shall be had in the case, the witness can give his evidence in such a way that there will be no necessity for an explanation.
The eleventh assignment of error c'omplains of disallowing, the plaintiff’s objection to the defendants’ question to witness McGuire as to how much he had paid for plaintiff’s mill when he bought it in 1901, some four years after the attachment was sued out. The irrelevancy of the matter is patent.
The twelfth assignment objects to the ruling of the court overruling the objection to the question propounded by the defendants to one Mr. Simmons, a person not shown to be nor claiming to be an expert, as follows: “Supposing there had been no attachment on October 1, 1897, and the L. Bucki & Son Lumber Company had been unable for any reason to procure this loan, what would have been its ability to continue to make payment of its obligations, including the amount due for logs, and to continue to receive pay for logs?” The objection was on the ground that the question is based on a hypothesis not shown to be true or untrue. It calls for the conclusion of the witness as to the ultimate fact which the jury are impaneled to try without calling for any fact from the witness as to the property and assets of the L. Bucki & Son Lumber Company,
The thirteenth, fourteenth, and fifteenth assignments of error complain of admitting evidence over the objection of the plaintiff of matters occurring after October 1, 1897, the date of the attachment to establish probable cause or show the absence of malice. “In a suit for malicious prosecution the conduct of the defendants is to be weighed in view of what appeared to them when the suit was instituted, not in the light of subsequently appearing facts.” Stewart v. Sonneborn, supra. The evidence appears to be not only irrelevant, but should have been excluded, as tending to unnecessarily complicate an otherwise very complicated case, and because the effect of it would be to mislead the jury.
The sixteenth and seventeenth assignments of error complain that one of the defendants (Ambler) was permitted to testify with regard to his own knowledge and on information as to the affairs of the L. Bucki & Son Lumber Company in the three and four months immediately preceding the issuance of the attachments. The main issue in the case was as to Ambler’s good faith — whether, acting conscientiously, impartially, reasonably, and without prejudice, he believed that sortie of the grounds for suing out the writs of attachment existed. It would seem that the objection to the admission of the evidence sought from Ambler was one-rather to its effect than to its admissibility.
The eighteenth assignment of error is based on the fact that the trial judge, over the objection of plaintiff, allowed the defendants Ambler, Meigs, and Liggett to testify that they were not actuated with malice. In Hinds v. Keith, 6 C. C. A. 231, 234, 57 Fed. 10, 13, this court held:
“The courts in many of the states have held that in cases in which knowledge, motive, or intent may he imputed to parties hy circumstantial evidence they are permitted to testify directly as to the existence of such motive or intent, and the ruling of the court below was in harmony with these decisions. But we think the sounder principle and better rule is to exclude such evidence. The Supreme Court of Alabama has declared that the rule is well settled in that state that a ‘party certifying for himself should not be permitted to state the motive or intention with which he did an act; that such motive or intention is an inferential fact, to be drawn by the jury from proven attendant facts and circumstances.’ Burke v. State, 71 Ala. 382; Whizenant v. State, Id. 383. In actions at law in the courts of the United States the rules of evidence and the law of evidence generally of the state within which such courts are held prevail. Rev. St. § 721 [U. S. Comp. St. 1901, p. 581]; Connecticut Mut. Life Ins. Co. v. Union Trust Co., 112 U. S. 250, 5 Sup. Ct. 119 [28 L. Ed. 708]; Ex parte Fisk, 113 U. S. 720, 5 Sup. Ct. 724 [28 L. Ed. 1117].”
In Germania Fire Ins. Co. v. Stone, 21 Fla. 555, the Supreme Court of Florida held as follows:
“Under the statute permitting a party to a civil action to testify in his own behalf, it is competent for him, where the question is whether or not he did a certain act with a fraudulent intent, to testify as to his intention, and to state whether or not he, at the time of acting, considered that he had the right to do the act. Such testimony, however, is not conclusive upon the jury.”
“That under the law admitting parties to testify in their own behalf it is well settled that, where the character of the transaction depends upon the intent of the party, it is competent, when that party is a witness, to inquire of him what his intention was.”
If this decision is in harmony with the prevailing jurisprudence in the state of Florida — and we have no reason to_ doubt it — the trial court may well have admitted the evidence under authority of our decision in Hinds v. Keith, supra. And the same may be said of the questions raised in the nineteenth, twentieth, and twenty-first assignments.
The twenty-second, twenty-third, and twenty-fourth assignments relate to the rejection of evidence claimed to be in rebuttal, and the questions raised may be avoided on another trial.
The twenty-fifth assignment of error complains of the ruling of the court in rejecting evidence as to certain instructions given by the court to the jury in the common-law action of the Atlantic Lumber Company against the L. Bucki & Son Lumber Company to recover alleged indebtedness for which the attachments mentioned in the declaration herein were sued out; the instructions being the then opinion of the court as to certain facts proved in that case. These instructions were ruled out as irrelevant and immaterial to the issues in the present case, and therein we see no error.
The twenty-sixth assignment complains of the instruction of the court directing a verdict in favor of the defendants. This matter has been hereinbefore fully disposed of.
The twenty-seventh assignment complains of the rejection in evidence of a certain bill in equity by plaintiff against the Atlantic Lumber Company to. correct the error of the court in calculating the amount of a remittitur ordered in said case on a motion for a new trial. This evidence was rejected by the court as irrelevant and immaterial to the issues in this case. We consider that the evidence offered was too remote to properly affect any of the questions to be presented to the jury. The judgment of the Circuit Court is reversed, and the cause is remanded, with instructions to grant a new trial, and thereafter proceed according to law and in accordance with the views expressed in this opinion.