Irvin M. LEVINE, Appellant, v. Richard Henry MILLS, Appellee.
No. 1607.
Municipal Court of Appeals for the District of Columbia.
May 27, 1955
114 A.2d 546
Argued March 21, 1955.
We find no error in the decision of the trial court.
Affirmed.
by the person aggrieved by such detention or by his agent or attorney having knowledge of the facts, to issue a summons to the party complained of to appear and show cause why judgment should not be given against him for the restitution of possession.”
Emmett Leo Sheehan, Washington, D. C., with whom Landon Gerald Dowdey, Washington, D. C., was on the brief, for appellee.
Before CAYTON, Chief Judge, and HOOD and QUINN, Associate Judges.
CAYTON, Chief Judge.
A defendant appeals from a judgment of $7,500 entered against him in a suit for malicious prosecution.
The trouble started one night in December 1951 when Richard Levine, then a boy of twelve, came home in tears and reported to his parents that while on his way home on a Capital Transit bus the driver, Richard Mills, in demanding surrender of a transfer had yelled at him, grabbed and shook him, and pushed him toward the open door of the bus which was then in motion, and that he was saved from falling to the ground by another boy who was with him at the time. Richard‘s parents then went with him to a police station where they reported the occurrence. A detective was assigned to the case and went with the Levines to the bus terminus. There, it was testified, Mills at first denied ever having seen Richard before, but later admitted that he had shaken the boy. Levine denounced Mills (in language to which we refer more fully later). The detective notified all the parties to appear the following morning at an informal hearing before an Assistant United States Attorney. At the hearing Levine signed an application for a warrant and following another session in the same office a warrant was issued charging Mills with an assault on Richard. (At the trial of this present suit Levine said that the Assistant United States Attorney had recommended prosecution; Mills said that the prosecutor had advised Levine not to prosecute the case; and the prosecutor himself was not called as a witness because he reported that he had no recollection of the events.)
Mills was acquitted of the assault charge and then sued Levine in the United States District Court for the District of Columbia for malicious prosecution. Later Levine brought suit in behalf of his son Richard in the same court for damages for the alleged assault, naming as defendants Mills and the transit company. The District Court judge presiding at pretrial ordered that both cases be certified to the Municipal Court because he felt that a verdict exceeding $1,000 was not justified. This is a procedure authorized by
In the Municipal Court, the pretrial judge ordered the cases consolidated for trial; but when the actual trial was about to start, the judge presiding, on his own motion and over objection of Levine‘s counsel, ordered that the two cases be tried separately.
The jury awarded plaintiff $5,000 compensatory damages and $2,500 punitive damages. Defendant moved timely for a new trial (and in the alternative for a judgment n. o. v.) on several grounds, including excessiveness of the verdict. In considering this question we must discuss the evidence
After the warrant had been issued, Mills’ superintendent called him into his office and told him to go to No. 8 Police Precinct and pick up the warrant. When Mills went there about 9:00 p. m. he was booked and put in a cell. About a half hour later he was taken from the cell, interrogated at great length, and then returned to the cell. Around midnight he was taken in a police wagon to police headquarters along with a woman who was very drunk and disorderly and who created a mess in the wagon. At headquarters he was fingerprinted, photographed, and interrogated at still greater length. Then he was returned to the Precinct in the same wagon in company with the same disorderly woman. He was again “locked up, momentarily,” and was then permitted to deposit $25.00 collateral and leave. He testified that as a result of the incident he had a weak stomach and that he was upset for about a month (his wife said two months). He said he consulted a physician who prescribed medicine for his nervous stomach. (In a deposition given earlier he had said that he did not receive medical attention as a result of the incident.) He said that after the incident his friends and fellow employees called him “child beater” and “jail bird.” But he lost no time from his work, was still working for the transit company, and offered no evidence that his standing with the company had in any way deteriorated because of or since the arrest. There was no evidence of any pecuniary loss.
It has long been generally accepted judicial policy that suits of this kind are not favored in the law. Vancouver Book & Stationery Co. v. L. C. Smith & Corona Typewriters, 9 Cir., 138 F.2d 635, certiorari denied 321 U.S. 786, 64 S.Ct. 780, 88 L.Ed. 1077; National Surety Co. v. Page, 4 Cir., 58 F.2d 145, rehearing denied, 4 Cir., 59 F.2d 370. See also 34 Am.Jur., Malicious Prosecution, § 5, p. 705. Courts have taken the position that one who seeks to enforce rights which have been violated is not thereby committing a legal wrong, but may actually be performing a moral duty, and that a citizen should have free access to the courts in having his rights determined without being forced to respond in damages when he has caused a prosecution in good faith and on reasonable grounds. See 54 C.J.S., Malicious Prosecution, § 3, page 955. For the same reason it is right and logical that large verdicts in this type of action should be viewed with more concern and examined more critically for excessiveness than verdicts in other tort actions. Peel v. Bramlett, 298 Ky. 20, 181 S.W.2d 448,
We agree that it is important that one falsely accused of crime and maliciously prosecuted should be reasonably compensated for his injury. We also agree that when the accuser has acted from evil motives or wantonly or oppressively, or from proven actual malice,1 the law authorizes a jury to say that he ought to pay punitive damages. But we are well aware that in these cases there are often strong emotional overtones, making it easy for a jury to succumb to passion or prejudice or other improper motives, or to misconceptions of the evidence or the court‘s instructions. We cannot free ourselves from the conviction that there was such a misadventure in this case. We must hold that the verdict was excessive and cannot be permitted to stand.
We do not for a moment minimize the discomfiture which plaintiff endured, but the worst of his suffering, which he stressed in brief and argument, was during the several hour period he was in the hands of the police after he went voluntarily to pick up the warrant. If he was mistreated by the police or held or questioned longer than was justified in a case of simple assault, or if he was subjected to distasteful episodes while in the police wagon, then it is reasonable to argue that these troubles cannot fairly be charged to Levine as a natural and probable result to be expected from the complaint he had made against Mills. It is not necessary that we declare such to be the law of this case; it is sufficient to say that it is reasonable and logical to employ that approach in testing whether the verdict is in an area which must be called excessive.
We think it is proper to point out that though it is relevant and proper, in this type of case, to offer evidence of a defendant‘s financial worth to help the jury on the question of punitive damages,2 plaintiff offered no evidence and asked no questions on this subject. (Plaintiff‘s counsel did by way of a side remark refer to the defendant as a member of the Bar, but there was no evidence of that fact or whether defendant was in private practice or employed privately or by the government.) So the jury was given no guide as to defendant‘s salary, income, property holdings or financial status. Thus we have a judgment which not only bears no reasonable relationship to the evidence, but which might also prove wholly ruinous to defendant.
In the states, appellate courts have generally followed the procedure of ordering a remittitur of part of a recovery which is deemed excessive.3 But as we pointed out in Munsey v. Safeway Stores, D.C.Mun. App., 65 A.2d 598, Federal appeals courts seem to have limited such practice to contract cases and the like, where the excess amount of the verdict can be fairly well determined, but have not undertaken to cure by remittitur an excessive verdict rendered in tort actions for unliquidated damages. This case being clearly in the unliquidated field, and there being no formula by which we could compute the proper amount of a remittitur (even if we thought
Reversed.
HOOD, Associate Judge (dissenting).
The majority opinion holds that the verdict of the jury in an action for malicious prosecution was excessive and on that ground alone reverses the judgment. Before stating the grounds for my disagreement, I think it proper to give some consideration to the power of an appellate court in a federal jurisdiction to review a judgment for alleged excessiveness of the verdict.
In Southern Railway Carolina Division v. Bennett, 233 U.S. 80, 34 S.Ct. 566, 567, 58 L.Ed. 860 Mr. Justice Holmes, speaking for the court said: “But a case of mere excess upon the evidence is a matter to be dealt with by the trial court. It does not present a question for re-examination here upon a writ of error.” Nearly twenty years later, in Fairmount Glass Works v. Cub Fork Coal Co., 287 U.S. 474, 485, 53 S.Ct. 252, 255, 77 L.Ed. 439, in an opinion by Mr. Justice Brandeis, the court said: “This Court has frequently refrained from disturbing the trial court‘s approval of an award of damages which seemed excessive or inadequate, and the circuit courts of appeals have generally followed a similar polity.”
Largely as a result of those two decisions, we find frequent statements in the federal circuits that a claim of excess in the verdict is not the subject of appellate review. Thus in this jurisdiction it was said in Washington Times Co. v. Bonner, 66 App. D.C. 280, 293, 86 F.2d 836, 849, 110 A.L.R. 393, 411: “In any event, we are not at liberty to reverse on account of the size of the verdict. The rule is settled in the Federal courts, not only in libel actions but also in general, that an appellate tribunal will not review the action of a trial court in granting or denying, for excessiveness or inadequacy of the verdict, a motion for a new trial.” In Behrman v. Sims, 81 U.S.App.D.C. 303, 305, 157 F.2d 862, 864, the court said: “The final point of the appellant is that the verdicts were excessive. Be that as it may, this court is without authority to review on that score.” And again, in Feltman v. Sammond, 82 U.S.App.D.C. 404, 166 F.2d 213, it was said: “It is settled that we cannot review a trial court‘s decision to grant or deny a new trial on the ground that a verdict was excessive or inadequate.”
In other federal circuits we find similar statements. In Searfoss v. Lehigh Valley R. Co., 2 Cir., 76 F.2d 762, 763, the court said: “This court lacks the power to review as a question of fact the subject of excessive damages.” In Scott v. Baltimore & O. R. Co., 3 Cir., 151 F.2d 61, 64, the court said: “The third point urged by the defendant is that the damages fixed by the jury at $35,000 are excessive. The members of the Court think the verdict is too high. But they also feel very clear that there is nothing the Court can do about it.” In Atlantic Coast Line R. Co. v. Pidd, 5 Cir., 197 F.2d 153, 156, certiorari denied 344 U.S. 874, 73 S.Ct. 166, 97 L.Ed. 677, it was said: “A verdict is unreviewable by an appellate court for alleged excessiveness if it is excessive only in fact.” In Flener v. Louisville & N. R. Co., 7 Cir., 198 F.2d 77, 80, the court said: “This court has adhered to the rule that it will not review a judgment for excessiveness of damages.” And in Zimmerman v. Mathews Trucking Corp., 8 Cir., 203 F.2d 864, 868, the court said: “This Court has consistently adhered to the proposition that the responsibility for keeping jury awards within reasonable bounds is essentially that of the trial courts and not of this Court.”
Despite the seemingly flat statements that excessiveness of verdict is not reviewable, we find statements or at least indications in the decisions that the action of a trial court in refusing to set aside a verdict for excessiveness may be reviewed to determine whether such action constituted an abuse of discretion. In this jurisdiction in Hecht Co. v. Jacobsen, 86 U.S.App.D.C. 81, 86, 180 F.2d 13, 18, it was said: “We do not think that the trial court abused its discretion when it sustained the jury‘s award
In Affolder v. New York, C. & St. L. R. Co., 339 U.S. 96, 101, 70 S.Ct. 509, 511, 94 L.Ed. 683, the Supreme Court said: “We agree with the Court of Appeals that the amount of damages awarded by the District Court‘s judgment is not monstrous in the circumstances of this case.” This statement has been construed as an indication by the Supreme Court that an appellate court may reverse a judgment where the amount awarded is so excessive as to be monstrous. See Trowbridge v. Abrasive Co. of Philadelphia, 3 Cir., 190 F.2d 825, 830, footnote 10; Wetherbee v. Elgin, Joliet & Eastern Ry. Co., 7 Cir., 191 F.2d 302, 310. But also see Stevenson v. Hearst Consol. Publications, 2 Cir., 214 F.2d 902, 911, certiorari denied 348 U.S. 874, 75 S.Ct. 110.
In spite of these numerous statements or indications that an appellate court may reverse for excessiveness of verdict there are remarkably few instances in which it has been done. A notable instance is found in Virginian Ry. Co. v. Armentrout, 4 Cir., 166 F.2d 400, 4 A.L.R.2d 1064. See also Boyle v. Bond, 88 U.S.App.D.C. 178, 187 F.2d 362; Southern Railway Company v. Neese, 4 Cir., 216 F.2d 772; Texas Co. v. Christian, 5 Cir., 177 F.2d 759; Cobb v. Lepisto, 9 Cir., 6 F.2d 128.
I have made no attempt to review all the cases or to discuss the reasons given for the various rulings. Full and interesting discussions may be found in Judge Lindley‘s opinion in Bucher v. Krause, 7 Cir., 200 F. 2d 576, certiorari denied 345 U.S. 997, 73 S.Ct. 1141, 97 L.Ed. 1404, in Judge Holmes’ dissenting opinions in Sunray Oil Corporation v. Allbritton, 5 Cir., 187 F.2d 475, 477; Id., 5 Cir., 188 F.2d 751, 752, certiorari denied 342 U.S. 828, 72 S.Ct. 51, 96 L.Ed. 626, and in Judge Learned Hand‘s opinion in Miller v. Maryland Casualty Co., 2 Cir., 40 F.2d. 463. Perhaps the question will be definitely settled by the Supreme Court which has granted certiorari, 348 U.S. 950, 75 S.Ct. 439, in Southern Railway Company v. Neese, 4 Cir., 216 F.2d 772. For present purposes it is enough to say that the rule in federal jurisdictions recognizes that in an action for unliquidated damages, the question of excess of verdict is primarily one for the trial court, and that an appellate court may not reverse merely because it is convinced that the verdict was excessive. If an appellate court may reverse for excessiveness of verdict, it may do so only where the verdict is so grossly excessive or monstrous as to demonstrate clearly that the trial court abused its discretion in permitting it to stand. Brest v. Philadelphia Transportation Company, 3 Cir., 216 F.2d 331; Kilmer v. Gustason, 5 Cir., 211 F.2d 781; Chicago, Rock Island & Pacific Railway Co. v. Kifer, 10 Cir., 216 F.2d 753, certiorari denied 348 U.S. 917, 75 S.Ct. 299.
Guided by those rules I cannot join in the majority opinion. Here we have a verdict which establishes that defendant maliciously and without probable cause instituted criminal proceedings against plaintiff. As a result plaintiff was arrested, searched, interrogated at length, and locked up in a precinct cell; taken in a patrol wagon to headquarters where he was photographed, fingerprinted, and again interrogated; returned to the precinct, again locked in a cell, and finally released on bail. All this covered a period of about six hours. Plaintiff was then compelled to go through the suspense of waiting for a trial and finally to defend himself in court. As a result of this he was nervous, could not sleep, could not eat, and lost weight. I do not detail the evidence because I think this brief outline is sufficient to show that the verdict of the
I shall mention two other points made in the majority opinion. One is the statement that suits for malicious prosecution are not favored in law. I know of no such ruling in this jurisdiction. Recent decisions seem to me to indicate a contrary trend. In Melvin v. Pence, supra, the law of malicious prosecution was extended to include wrongful institution of an administrative proceeding; and in Soffos v. Eaton, supra, the law of malicious abuse of process, closely akin to malicious prosecution, was broadened.
The majority seems to lay some stress upon the fact that there was no evidence of defendant‘s financial worth. Possibly plaintiff could have introduced such evidence, but I know of no rule of law requiring him to do so.
For the reasons stated above, I dissent.