7 Daly 74 | New York Court of Common Pleas | 1877
This was an action to recover damages for a malicious prosecution. Upon the trial, the complaint was dismissed. . The plaintiff appealed to this court, and the general term granted a new trial. The defendants then appealed to the Court of Appeals, where the decision of the general term was affirmed, and upon the stipulation entered into by the appellants, judgment absolute was rendered for the plaintiff. The cause was then remitted to this court, where all that remained to be done, was to ascertain the plaintiff’s damages, he having in addition to his general damages, averred in his complaint special damages, one item of which was, that he had been compelled to pay about seven hundred dollars in costs and counsel fees. The effect of rendering judgment absolute in his favor, was to establish fully his cause of action, leaving nothing to be ascertained but his damages; to hold, as he averred, that the defendants maliciously intending to injure him in his good reputation and without probable cause, charged him before a magistrate with having committed willful and corrupt perjury; that they procured the magistrate to grant a warrant for his arrest upon that charge, upon which warrant he was arrested and imprisoned for several hours, when he gave bail; and that afterwards, upon an examination before the magistrate, he was fully acquitted upon the testimony of the prosecution.
The effect of the judgment of the Court of Appeals was the same as if the whole of the plaintiff’s cause of action had been admitted.- It was equivalent to an admission, by a failure to put in an answer, that the defendants had maliciously and without probable cause, caused the plaintiff to be arrested, imprisoned and prosecuted upon a charge of perjury. But the amount paid for counsel fees and costs, the plaintiff had to prove upon the assessment, for that was in no way settled by the judgment of the Court of Appeals, the effect of which was simply to establish the plaintiff’s cause of action as averred in his complaint, but nothing more; and the ruling of the judge upon this point was, in my opinion, erroneous.
The averment that he was compelled to pay “ about seven
Even if an expense incurred in consequence of the injury is, as Judge Pratt said—but without supporting it by any authority—in De Forest v. Leete (16 Johns. 128), “ a material and traversable fact,” it would not avail in the present case, Avliere the averment is not that $700 was paid, but about that amount, making it still necessary for the plaintiff to show, upon the assessment, what sum was paid.
The complaint also averred, as an additional damage, that the plaintiff had suffered in his business, ¿specially among those who believed him guilty, and who refused to deal with
The appellants insist that under this averment the plaintiff could recover only nominal damages; and that, if he sought to recover any more, he would have to prove them. But this is not the rule. In actions of this nature, where the injury done to a man’s reputation by his being arrested and imprisoned upon such a charge, and the mental suffering which is incident to it, is incapable of exact proof as is an ordinary pecuniary injury to property; the plaintiff upon an assessment of damages;—his cause, of action being admitted, is not required to give any evidence of damage, but the jury may give such damages as they think the nature of the injury Avarrants, and which, unless excessive, will not be disturbed. (Tripp v. Thomas, 3 Barn. & Cresw. 427 ; id. 5 Dow. & Ry. 276 ; Pierepoint v. Shapland, 1 Car. & Payne, 447; Tillottson, v. Cheetham, 3 Johns. 56 ; 1 Tidd’s Pract. 581, 9th Bond. Edit.; Townshendon Slander and Libel, § 274.)
As respects the assessment of damages in this case, it is to be regarded as analogous to the case of a default upon a failure to answer, and to be governed by the practice which existed upon assessing damages upon an inquest át the circuit or upon a writ of inquiry before a sheriff’s jury. »
It was held in Green v. Willis (1 Wend. 78), that upon an inquest, the defendant loses his right to challenge the jury or to produce testimony, and examine witnesses .on his behalf;—that he is entitled to appear; to cross-examine the plaintiff’s witnesses ; to raise objections to the plaintiff’s right of recovery, and to take exceptions to the decisions and opinions of the judge, and it was in respect to the practice, as it has existed since the decision of this case, in 1828, that I remarked upon the argument in the present case, that so far as my knowledge extended, it had not been the practice to allow the defendant to call Avitnesses.
In Tillottson v. Cheetham (supra), Spencer, J., said in effect, that the defendant was entitled to give evidence, to mitigate the damages in action of libel; that the plaintiff, in consequence of the default, was entitled to nominal dam
It has been said, moreover, in other cases, that where the cause of action was admitted by the default and the sum which the plaintiff was entitled to recover was uncertain, that the defendant was at liberty to give evidence upon that point. (De Gaillon v. l'Aigle, 1 Bos. & Pul. 368; Sheperd v. Charter, 4 Term Rep. 275; Thellusson v. Fletcher, Doug. 317 ; Dunlap’s Pr. 395.)
In Gilbert v. Rounds (14 How. Pr. 46), which was an action for an assault and battery, it is said by Balcom, J., that where a party allows an - inquest to be taken against Rim at a circuit, there is authority for saying that he thereby loses the right to produce testimony and examine witnesses on his part; and is restricted to the right of cross-examining plaintiff’s witnesses ; but that he was unable to find any authority, that the defendant’s rights were so restricted on the assessment of damages, either at the circuit, or before a sheriff’s jury, when judgment goes against him for not answering the complaint. This distinction may be entirely true, so far as it is applied to the assessment of damages in an action for assault and battery; for in such an action, if the plaintiff, upon the defendant’s failure to answer, gives no proof of the nature of the injury which he suffered, but relies simply upon the defendant’s admission of :an assault and battery, the plaintiff can recover only nominal damages (Bates v. Loomis, 5 Wend. 134) ; for unless the circumstances of the assault and battery are proved, the jury have no means of judging what damages beyond nominal damages they ought to give.
In Saltus v. Kipp (12 How. Pr. 342), which was also an action for assault and battery, Bosworth, J., says: “A defendant may call witnesses on the assessment of damages upon a writ of inquiry and prove any matter which goes
So far as the plaintiff gave evidence of facts and circumstances, tending to enhance the amount of damages, the defendants were entitled to give evidence to controvert any of those facts and circumstances. With that view, they subjected the plaintiff to a very long cross-examination; and in addition, attempted to get before the jury the whole case as it was presented on the trial, before Judge Larremore. when the complaint was dismissed; and also proposed to show that all the facts came up upon a motion to discharge the order of arrest before Judge Joseph F. Daly, and that he virtually rendered the same decision as Judge Larremore, All this testimony was objected to and excluded, the defendants taking a great number of exceptions which I clo not propose to consider, as 1 shall pass upon those exceptions only which the defendants present in their points, and which their counsel have argued before us, at the general term,
In Foster v. Smith (10 Wend. 377), which Avas an assessment of damages by a writ of inquiry, after default, in an action for false imprisonment, it was held that evidence denying the. cause of action, or tending to show that no right of action existed, was inadmissible in mitigation of damages; that damages in such a case must be assessed on the assumption that the trespass complained of has beexi committed. Nor were the defendants entitled to ask the defendant who made the complaint, whether he had any malice in his heart against the plairxtiff, in making it. Malice, in ah action of this nature, is what is termed malice in law ; that is, doing a thing intentionally without any lawful right or authority. The existence of actual malice, however, may be shown to enhance the damages; and where any such evidence is given, such a question as the one asked might be put to disprove the existence of actual malice. No evidence of this kind, however, was offered by the plaintiff, and
Robinson and Larremore, JJ., concurred.
Reassessment ordered.
Upon an application being subsequently made to the general term by the plaintiff to have the judgment reduced by deducting the amount of $700 expenditures in defending the malicious action and affirmed as to the remainder, the following opinion was delivered on June 7th, 1877:
While the plaintiff’s application might be granted were this an action founded on contract, where the damages may be made matter of just estimate and calculation •upon principles established by the court, no such rule can be
Were this an action founded solely on contract or upon, matters of mere pecuniary obligation, the consent of the-plaintiff to deduct the sum from the recovery would be just and proper, and relieve the court from the necessity of a new trial; but the present case being an action for tort it is impossible to adjudge that precise sum as having controlled the-jury in their assessment of plaintiff’s damages. It may well be that in the making of that assessment they may have-regarded the necessity on the part of the plaintiff in incurring any such an expense, as matter of aggravation, enhancing the damages to an amount such as they would not otherwise have given; and it is impossible to enter into the-minds of the jury and determine the extent of the consideration they gave to the circumstances calling for this expenditure.
The motion of the plaintiff to reduce the recovery by this, amount should be denied, with costs.
Charles P. Daly, Ch. J., and Larremore, J., concurred»
Motion denied, with costs.