64 N.Y.S. 1016 | N.Y. App. Div. | 1900
The defendant appeals from a judgment entered on a verdict of a jury awarding to the plaintiff damages in $2,500 for a malicious-prosecution and from an order denying a motion for a new trial. It is claimed that there was no proof of want of probable cause or of malice, that the prosecution was not brought home, to the defendant corporation, that the verdict was contrary to law, that the damages were excessive, and that errors were made in various rulings-upon the evidence.
Probable cause, unlike malice, is not determined by standard of the particular defendant, but of the ordinarily prudent and cautious man, exercising conscience, impartiality and reason without prejudice upon the facts. (Heyne v. Blair, 62 N. Y. 19, and cases cited.) And so, a mere honest belief in guilt is not enough; it must be founded upon reasonable grounds. (Farnam v. Feeley, 56 N. Y. 451; Fagnan v. Knox, 66 id. 525.) For though he have belief^ and yet act. negligently and irrationally, the prosecutor' may Hot have probable cause. The test, then, is not exclusively limited to the actual knowledge in fact of the defendant, but may be put to-any knowledge which he could or ought to have gained in the exer
Addressing the case at bar we first ask whether there was shown any knowledge of facts in the defendant that might explain the suspicious circumstances and clear the accused in the eye of an ordinarily prudent and cautious man. For the defendant cannot escape by excluding them, if they existed, and by putting forth the mere prima facie circumstances. (Fagnan v. Knox, supra) And we next ask whether there were shown any facts that the defendant, acting with the care and prudence of an ordinarily cautious and prudent man, could or ought to have learned that should have stayed such a man in the prosecution. The plaintiff was charged, in an information laid by the secretary of the defendant, with the theft of $5.95 from the defendant on October 30, 1899, in that the plaintiff, as cashier of the defendant, had paid to another employee $148.85 as the total receipts of one night, as shown by his cash slip, and that, though- this amount corresponded with the total of his cash-registering machine, it did not tally with the checks showing orders, as the defendant had ascertained by personal examination. A man of ordinary caution and prudence would be reasonably sure of his ground before making an accusation of crime upon a variance of a few dollars between the sum of the checks and the'sum of the cash receipts representing the business of a single night, for the deficit might naturally have occurred through omission, inadvertence or mistake. The ■ plaintiff was arrested after two or three days, without intimation of suspicion or opportunity for explanation. Upon arraignment he waived examination as to his defense, and
Malice may well be inferred from want of probable cause. In Burhans v. Sanford (19 Wend. 417), Bronson, J., said: “Malice may be, and usually is, inferred in these actions from the want of probable cause.” (Heyne v. Blair, supra, 20, 22; Wilder v. Holden, 41 Mass. [24 Pick.] 8.) “ Malice is * * * a question exclusively for the ■ jury.” (Stewart v. Sonneborn, supra,.) It is claimed that the plaintiff failed to bring the prosecution home to the defendant. It is now settled that this action will lie against a corporation. (Morton v. Metropolitan, Life Ins. Co., 34 Hun, 366; affd., 103 N. Y. 645;. Willard v. Holmes, 142 id. 492.) The defendant could act only through its officers and agents. Henry was its secretary. Previous to the arrest he had consulted with the general manager, who referred him to the defendant’s general counsel. ■ The counsel and Henry went before the magistrate; Henry, as secretary, laid the information charging the larceny from the defendant, and the proceedings and trial were conducted under his. eye and that, of the general counsel, who attended throughout and made some suggestions, sitting with the district attorney. We think that this was sufficient to justify a submission to the jury. (Morton v. Metropolitan Life Ins. Co., supra.)
There are no errors in the rulings upon evidence available to the defendant. The bond and agreement above referred to were'relevant and. material upon the employment of the plaintiff and the surroundings of his service. It was not error to permit the plaintiff to testify that pending the criminal proceedings, and before the criminal trial, Henry had said that “ they ” had made a little .mistake, i
The amount of damages should not be disturbed. Damages in these eases may be based upon injury to person, to reputation, and to pocket. (Add. Torts [7th ed.], 230 ; Newell Mal. Pros. 492.) The testimony of the plaintiff warranted the. consideration of all these elements. The amount of damages affords no evidence in this ease of intemperance in the minds of the jury, which necessarily, in .this as in all cases of tort, had a broad discretion.
The charge to the jury stands without exception, and is as considerate of the defendant as the law allows.
The judgment and order should be affirmed.
All concurred.
Judgment and order affirmed, with costs.