55 Vt. 570 | Vt. | 1882
The opinion of the court was delivered by
The case stands on demurrer to the first count of the declaration. The defendant’s counsel contends that the “ gravamen of the count is the arrest of Collins,” and that his arrest was no infringement of the rights of the plaintiff; that this was illegal, if at all, only as against him, and that the plaintiff cannot recover damages for an act not illegal as to itself; that the damages resulting to the plaintiff from this arrest of its servant upon due process are damnum absque injuria.
We think, the assumption that the gist of the count is the arrest of Collins is unsound. The gist is the delay of the train for the purpose of injury to the plaintiff. To accomplish the injury the defendant resorted to the contrivance of a legal proceeding against the servant. The process was correct in form, and was a legal warrant for the act of the officer. But, back of that, the act of resorting to legal proceedings against Collins was, under the averment, wrongful, and this wrongful act was adopted as a means and for the purpose of injuring the plaintiff. The preliminary or concurrent wrong to Collins did not alter the character of the wrong to this plaintiff. The wrong to Collins was the instrumentality adopted to accomplish this injury, A suit for malicious prosecution by Collins would not be affected by the fact that the officer was warranted in serving the original process, or that his act of arresting was legal as to him, but it would reach back to the question of motive and probability of cause. No more should
It is further contended in behalf of the defendant that Collins being the injured party has his action for the injury done, and that the defendant ought not to be subjected to two actions for the same act.
It is admitted under the demurrer that this plaintiff was injured ‘by the act of the defendant which we hold was wrongful. It is no answer to a claim for this injury to say that this act also injured another party. Each party suffering directly from a wrongful act is entitled to a remedy against the wrong doer. A single act of trespass destroying one man’s arm and another man’s leg would create a right of action in each separately. Further suggestion is made that the declaration contains no averment that the suit against Collins has terminated in his favor, and that the same rule should apply here as though this were his suit for malicious prosecution. This suggestion is made upon the assumption that the declaration shows a privity between Collins and the railroad company in respect to the subject-matter of the suit against Collins. Treating the assumption as correctly made, how does the case stand ? The declaration states in substance that the suit against Collins was utterly groundless and hopeless. The demurrer admits this. The rule that the plaintiff in an action purely for malicious prosecution should allege and prove that the original proceeding has terminated in his-favor, rests on the ground that the court will not tolerate inconsistent judgments upon the same
The defendant cites the case of Ashley v. Harrison, Peake, 194, where the proprietors of a theatre brought an action against the • defendant for having written a libel upon one of the plaintiff’s singers, by which she was deterred from appearing, whereby his profits were lost. Lord Kenyon held that the damages were too remote ; but this was on the ground that the damages arose from the vain fears or caprice of the actress. She could have sung but would not. Her fears or caprice intervened between the wrong
The proforma decision of the County Court is overruled, and the first count is adjudged sufficient, and the cause is remanded with leave to the defendant to replead, upon the usual terms.