90 N.Y.S. 5 | N.Y. App. Div. | 1904
Lead Opinion
Plaintiff had a verdict for damages he claims to have sustained on account of the malicious prosecution of the defendants. For many years they had conducted a large wholesale business with
The monthly statements to which reference has been made were always drawn off by the bookkeeper, and by him placed upon the desk of the plaintiff. After examination by him he handed them to the addressing clerk, to be thereafter passed to the mailing clerks. The plaintiff admits that he received all the monthly statements of Borchardt’s customers from the bookkeeper, but says that he passed them all on to the addressing clerk; it appears that the addressing clerk was changed frequently, and that the four or five boys at the mailing department were also constantly being changed. The inference is sought to be drawn by the defendants that the suppression of these monthly statements must have been accomplished after they left the hands of the bookkeeper, and that inasmuch as the plaintiff was the “ only constant link in the chain ” it was highly probable that no one else except himself effected the suppression.
Borchardt was arrested, but procured bail. Within a few weeks after this the plaintiff resigned his position, addressing one of the defendants by letter in these words: “ Dear Sir.— Having decided to make a change, my resignation is herewith. Kindly inform me what date it will suit your convenience for it to go into effect.” The resignation was accepted to take effect the last day of January, 1902, five weeks after it was tendered. After the plaintiff left defendants’ employ he gave to one of the defendants’ witnesses as his office address that of Borchardt’s new place of business, and made the witness a proposition to sell bakers’ supplies, which had been and was then Borchardt’s specialty. After Borchardt’s arrest he was a frequent visitor at his home, and his association with him seemed to be more intimate than it had been before the discovery of the embezzlement. Soon after plaintiff ceased to be connected with defendants’ firm, Hr. Leggett, one of the defendants, testified that he interviewed Borchardt and that the latter confessed to him that the plaintiff had been his accomplice and had received $6,000 or $8,000 out of the money that he had stolen. Although Borchardt was in the court room at the time of the trial he was not called as a witness. Thereupon the defendants took counsel with
The defendants urge that the plaintiff has not met the rule which requires him, to sustain the burden of proof, to show want of probable cause for the prosecution, and malice on the part of the defendants. The doctrine is well stated in Hazzard v. Flury (120 N. Y. 223, 227) as follows: “ The rule is that whether a person have probable cause to make a criminal accusation against another is not necessarily dependent ‘ upon the guilt or innocence of the accused, Or upon the fact whether a crime has been committed. * * * If the apparent facts are such that a discreet and prudent person would be led to the belief that a crime has been committed by the person charged he will be justified, though it turns out that he was deceived, and that the party accused was innocent.’ ” And the defendants urge that the facts in the case are such that as matter of law it must be said that a discreet and prudent person would have been led to the belief that the. crime was committed by -this plaintiff. It is also said in Anderson v. How (116 N. Y. 336, 338): “ What constitutes probable cause does not depend upon whether the offense has been committed in fact, nor whether the accused is guilty or innocent, but the prosecutor’s belief based upon reasonable grounds.” Probable cause, unlike malice, is not determined by the standard of the par
In their brief, defendants urge that inasmuch as the district attorney advised them to lay the matter before the grand jury, and inasmuch as they testified that they relied upon his advice, and that he made an independent examination of the witnesses in his office, they were entitled to a direction of a verdict at the close of the evidence. Their learned counsel evidently did not take that view, however, at the time of the trial, for neither in the motion for a nonsuit, nor in the motion for the direction of a verdict at the close of all the evidence, was that stated to be one of the grounds upon which the motions were made. By implication they conceded that such reasons were not sufficient to take the case from the jury, and they should not be permitted now for the purpose of reversing this judgment to urge this point, where, had it been made in time, it is not impossible that opportunity would have been given to supply additional and important proofs upon that subject. The Court of Appeals has held many times that motions for a nonsuit or to dismiss the complaint, to be effectual, must specify the defects supposed to exist. (Binsse v. Wood, 37 N. Y. 526, 532 ; Thayer v.
The verdict of $25,000 we cannot say was induced by mistake, passion or prejudice on the part of the jury. The reasonable charges of plaintiff’s counsel for his services rendered in procuring the dismissal of the indictments and in collateral matters was $5,000. The plaintiff had been in the employ of the defendants for between twenty and twenty-five years, and for several years prior to arrest had received a salary of $4,500. He was a man fifty-five years of •age, and had evidently attained an honorable position in the community. The law concedes a wide latitude of discretion in actions ■of this class, and, except the limitation that the verdict should not •seem to be actuated by prejudice, passion or malice, places no general limit upon the amount of the recovery. (Voltz v. Blackmar, 64 N. Y. 440.) Oases in which other large verdicts have been sustained, where there has appeared no greater actual damage than in this, are Crane v. Bennett (77 App. Div. 102); Young v. Fox (26 id. 261); Jacquelin v. Morning Journal Assn. (39 id. 515); Palmer v. N. Y. News Publishing Co. (31 id. 210); Scott v. Sun Printing & Publishing Assn. (74 Hun, 284); Willard v. Holmes, Booth & Haydens (2 Misc. Rep. 303; revd. on another point, 142 N. Y. 492).
The judgment and order should be affirmed, with costs.
All concurred (Bartlett and Jems, JJ., in result), except Woodward, J., who read for reversal.
Dissenting Opinion
(dissenting) :
I do not agree with the majority of this court in the affirmance of the judgment in this action, because I am convinced that there was no question involved which should have been submitted to a jury. The burden of showing a want of probable cause was upon the plaintiff; he was bound to show, as one of the elements of his cause of action, not that no crime had been committed, or that he was not guilty of a crime, but that the defendants did not have reasonable cause to believe that he had been guilty of a crime. In an action of this character there are four things which must be •shown affirmatively: The institution of the proceeding ; the want of probable cause; malice, and the termination of the prosecution in
There is no dispute that the defendants were engaged in a large* wholesale business, with over 18,000 customers, and that they employed one Borchardt as a salesman, with authority to collect, bills from his customers ; it is equally undisputed that Borchardt. became a defaulter to the extent of nearly $25,000. There is no-dispute that the plaintiff was employed by the defendants as a credit man, and that he was thus employed during all the period covered’ by these defalcations on the tpart of Borchardt. It is conceded that the custom of the defendants was to send out monthly statements of account to all their customers, with a notice that this was not a-request for the money, but merely for the purpose of having- any errors in the account called' to* the attention of the defendants, the obvious and admitted purpose being to have a check upon the salesman-The plaintiff admits that the bookkeeper of the defendants'made-out these statements and placed them all upon his desk; that he** examined them and turned them over to a clerk, whose duty it waste address these statements, and that they were then passed on to thé mailing clerk. Ho one questions that there were a considerable-number of changes made in the addressing and mailing clerks during the period of defalcations, so that the plaintiff was the only man,,
What is there here for the jury to pass upon ? Borchardt had committed a crime which he could not have carried out for any length of time without an accomplice or accomplices; the plaintiff was the one man who could have been this accomplice during all of the three years covered by the commission of the crime, and he voluntarily relinquished his position, paying a salary which had long been acceptable to him, and became the close associate of the defaulter, after the crime was publicly known, and the defaulter, on being confronted, admitted that the plaintiff was his accomplice. Was it the duty of the defendants, knowing all of the facts which we have detailed, and others of less importance, but all tending in the same direction, to go to thé plaintiff and tell him of the suspicions entertained, and give Mm an opportunity to explain? Was that what .reasonably prudent men do when they have been robbed by their employees ? Clearly the defendants were not bound to inform him of their suspicions and give him an opportunity to escape. (Kutner v. Fargo, supra, 322.) In the language of the case last above cited (pp. 320, 321): “ Without reflecting upon the plaintiff in the slightest degree, and without questioning the justice of the
The defendants were not hasty; they did not cause his preliminary arrest and detention, but only when, after investigation by themselves and by their attorney, they became convinced that they had discovered the accomplice of Borchardt, they called the matter to the attention of the district attorney, and the latter, after investigation, brought the case before the grand jury, and that body, in the discharge of its duty, found that there was probable cause to believe that a crime had been committed and that the plaintiff was guilty of that crime, for this is the necessary foundation for an indictment. “ The right of individual citizens to be secure from an -open and public accusation of crime, and from the trouble, expense and anxiety of a public trial,” say the court in Jones v. Robbins (8 Gray, 329, 344), “ before a probable cause is established by the presentment and indictment of a grand jury, in case of high offenses, is justly regarded as one of the securities to the innocent against hasty, malicious and oppressive public prosecutions, and as •one of the ancient immunities and privileges of' English liberty,” and while the action of the grand jury in finding that there- was probable cause may not be conclusive in all cases, it would seem that its determination upon the facts which were presented in this •case, taken in connection with the conceded facts, afforded a sufficient foundation to justify the court in disposing of the question of probable cause as one of law. Of course, if it. was shown that the defendants presented a garbled or unfair statement of the facts known to them to the grand jury it would afford no protection to the defendants that the grand jury had found an indictment, but where, as in the present case, the facts known to the defendants were sufficient to warrant them in believing that the plaintiff was the accomplice of Borchardt in his embezzlement, and these facts, after an independent investigation by the district attorney or his assistants, were placed before the grand jury, and that body found that there was probable cause to believe that a crime had been committed, and that the plaintiff was a party to that crime, it illy comports with public policy that the defendants should be called upon
In Monaghan v. Cox (155 Mass. 487), in an action for malicious-prosecution, it was held that evidence that the defendant, in commencing the prosecution, acted upon the advice of the magistrate-who received the complaint, was admissible upon the question of probable cause, overruling former cases, and the court say : “ Th& logic of the defense is, that the proceedings - alleged to have been malicious were in fact.instituted in good faith and upon probable^ cause, and that it -is upon the whole better that he who thus sets-them in motion with the purpose of vindicating the law should be? protected in the act, although an alleged offender may sometimes-suffer unjustly, than that wrong and crime should go unjranished because of the danger incurred in making complaints. To establish, the defense, it is required of the party himself, if he claims protection because he acted upon the advice of others, that he shall act in good faith believing that he has good cause for his action, and not' seeking to procure an opinion in order to shelter himself; that he shall make a full and honest disclosure of all the material facts» within his knowledge or belief; that he shall be himself doubtful of his legal rights, and shall have reason to presume that the person to whom he applies, or whose advice he follows, is- competent to-give safe and prudent counsel, and that he shall honestly pursue the-directions of his adviser ; the adviser must. he learned in the law,, and of such training and experience that he may safely be presumed to,be competent to give wise-and prudent counsel in important matters and must act under a sense of responsibility. By our own.
I think the judgment should be reversed and a new trial granted.
Judgment and order affirmed, with costs.