21 N.Y.S. 998 | New York Court of Common Pleas | 1893
Whatever the doubt in which the question was at one time involved, it is now well settled that a private corporation is liable civiliter for malicious prosecution, (Morton v. Insurance Co., 34 Hun, 366, affirmed 103 N. Y. 645; Bank v. Graham, 100 U. S. 699; Railway Co. v. Harris, 122 U. S. 597, 7 Sup. Ct. Rep. 1286; Williams v. Insurance Co., 57 Miss. 759; Carter v. Machine Co., 51 Md. 290; Wheless v. Bank, 1 Baxt. 469; Reed v. Bank, 130 Mass. 443; Railway Co. v. James, 73 Tex. 12, 10 S. W. Rep. 744; Hussey v. Railroad Co., 98 N. C. 34, 3 S. E. Rep. 923; Jordan v. Railroad Co., 74 Ala. 85;) and the malice of its officers and employes, or other agents, accompanying the performance of acts within, or incidental to, the discharge of their duties, is imputable to the corporation, (Railroad Co. v. James, 73 Tex. 12, 10 S. W. Rep. 744; Railroad Co. v. McKee. 99 Ind. 519,) Unless those acts-were intended as a mere cover for the accomplishment of some independent and wrongful purpose, (Hoffman v. Railroad Co., 87 N. Y. 25; Kolzem v. Railroad Co., [Com. Pl. N. Y.] 20 N. Y. Supp. 700; Donivan v. Railway Co., [Com. Pl. N. Y., filed Nov., 1892,] 21 N. Y. Supp. 457.) Liability, it seems, is predicable of the malicious prosecution, without probable cause, of an ordinary civil action, (Pangburn v. Bull, 1 Wend. 345; Eastin v. Bank, 66 Cal. 123, 4 Pac. Rep. 1106; Closson v. Staples, 42 Vt. 209; Whipple v. Fuller, 11 Conn. 582; Lockenour v. Sides, 57 Ind. 360; McCardle v. McGinley, 86 Ind. 538;) and unquestionably so if the prosecution of the action be accompanied by the arrest of the person prosecuted or the seizure and detention of his property, (Cooley, Torts, [2d Ed.] p. 217; Newell, Mal. Pros. c. 1, § 26, p. 35, and cases cited.) To maintain an action for malicious prosecution, plaintiff must establish that the prosecution has terminated in his favor; that it was unfounded, and without probable cause; and that the prosecutor was actuated by malice. Wheeler v. Nesbitt, 24 How. 544; Besson v. Southard, 10 N. Y. 236; Heyne v. Blair, 62 N. Y. 19; Thaule v. Krekeler, 81 N. Y. 428; Anderson v. How, 116 N. Y. 336, 22 N. E. Rep. 695; Foshay v. Ferguson, 2 Denio, 617. The termination of the alleged malicious prosecution is sufficiently shown if it appears that no further proceeding can be taken therein. Robbins v. Robbins, 133 N. Y. 597, 30 N. E. Rep. 977. “Probable cause” is defined to be "a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in 'his belief that a person accused is guilty of the offense with which he is charged,” (Anderson v. How, 116 N. Y. 336, 22 N. E. Rep. 695; Carl v. Ayers, 53 N. Y. 14; Foshay v. Ferguson, 2 Denio, 617;) a concurrence of real belief, and reasonable grounds for it, (Farnam v. Feeley, 56 N. Y. 451; Shaul v. Brown, 28 Iowa, 37;) and “malice,” in law, comprehends, not only as in the ordinary meaning of the term, a malevolent intention to injure another in his person, property, or good repute, but also any wanton or reckless disregard of another’s inviolable enjoyment of his civil rights.
Now, what are the facts in the case at bar? Defendant is a corporation chartered “for the purpose of manufacturing and dealing in all kinds of brass, copper, and Germansilver goods, plated ware, and metals composed wholly or in part of copper, brass, or Germansilver, and all articles composed in whole or in part of metal which it shall deem expedient, and to do such other things as are incident to the prosecution of said business, and to exercise such mercantile powers as may be convenient and necessary for the successful prosecution of said business.” One of the articles of defendant’s manufacture was a metal lamp, in connection with the use of which carbon was required, and for the supply of carbon it had contracted with the Forest City Carbon Manufacturing Company. Plaintiff had been for many years defendant’s treasurer and manager, was authorized to use its name for the indorsement of commercial paper, and to him had been intrusted the general conduct of its business affairs. It had been defendant’s constant practice, to the knowledge of its board of directors and stockholders, through its treasurer and manager, and at his discretion, to extend financial assistance to such persons or corporations as had established business affiliations with it, when required. In July, 1886, the Forest City Carbon Manufacturing Company, which for more than a year had supplied defendant with carbon, desiring to extend its works, and to comply with defendant’s request for increased supplies, requested defendant, through its treasurer manager, plaintiff, for a loan of $10,000, which the latter granted, by indorsing the carbon company’s note with defendant’s name, causing it thus to be discounted, and remitted the proceeds to the maker. In the latter part of the year 1886, and while the carbon company’s note, indorsed as mentioned, was still outstanding and unpaid, plaintiff resigned as defendant’s treasurer and manager. Chandler N. Wayland, who had been previously elected president, was
Was the prosecution malicious? The affirmative solution of this query must inevitably follow, if we are correct in the proposition that defendant was chargeable with knowledge of plaintiff’s authority to indorse the carbon company’s note. - It is incomprehensible how defendant, after having authorized plaintiff to indorse the note, could yet successfully contend that its known and persistent prosecution of the plaintiff, for a series of years, upon an accusation of having wrongfully incurred liability as indorser on its behalf, was aught but a wanton and reckless disregard of his right to the enjoyment of property and good repute, and in that sense, at least, “malicious.”
Defendant sought to shield itself in this action by the “advice of counsel.” Advice of counsel is, however, only a defense in so far as it may tend to prove “probable cause,” and disprove “malice,” (Railway Co. v. James, 73 Tex. 12, 10 S. W. Rep. 744;) and to have this effect it should appear that the advice of counsel was obtained after a “full, fair, and honest” statement of all the facts concerning the guilt of the person suspected or accused, which have come to the prosecutor’s knowledge, (Newell, Mal. Pros. c. 8, § 2, p. 310, and cases cited in the text and notes; Ames v. Rathbun, 37 How. Pr. 289.) This does not appear to have been done in the case now under consideration; for, though we assume Wayland’s belief of plaintiff’s guilt to be attributable only to the want of sufficient information of the facts when he first sought counsel, and directed the preparation of papers for the purposes of the supreme court action, and the attachment of plaintiff’s property therein, the facts transpiring at the subsequent interview between plaintiff and Wayland, and at the directors’ meeting, were not so submitted, and non constat but that, if they had been, counsel’s advice would have been in accord with the subsequent decisions of the supreme court and court of appeals. But had Wayland, and other officers- of the defendant, who were instrumental in the prosecution of the supreme court action, testified to the advice of counsel on such subsequently ascertained facts, their credibility as interested witnesses,
We have refrained from specially noticing the denial of defendant’s-motion for dismissal of the complaint when plaintiff rested, because-any defect in the proof at that time existing was cured by evidence-subsequently adduced by the parties, (Plank Road Co. v. Thatcher, 11 N. Y. 102, 112; Tiffany v. St. John, 65 N. Y. 315, 317; Painton v. Railroad Co., 83 N. Y. 7;) and upon the whole case our conclusion is that the trial judge properly refused to dismiss the complaint, and to-direct a verdict for defendant-.
The verdict awarded plaintiff $31,700 for damages which -had resulted to him from the malicious prosecution complained of in this action, and though but $2,500, the expenses incurred for counsel fees in his defense, was shown to have been plaintiff's actual pecuniary loss, we cannot, upon mature consideration, reach the conclusion that interference on our part with the verdict, only because it is of a large amount, would be justifiable. The evidence shows, and this fact was conceded by some of defendant’s witnesses, that, up to the time of defendant’s unwarranted accusation, plaintiff’s integrity was unimpeached. It also appeared that he rated high in financial and mercantile circles, and had been solicited to assume the presidency of- a banking institution, besides holding equally important and fiduciary positions in several manufacturing corporations. The loss of' these offices was directly attributable to defendant’s prosecution of what has proved to be an unwarranted impugnment of plaintiff’s integrity. In arriving at the amount awarded, the jury justly considered the loss of the offices mentioned; the actual expenses incurred by plaintiff in his-vindication; any general impairment of his integrity, in social and mercantile aspect; and the shame and humiliation endured as a direct result of the publicity of his arraignment upon a charge injuriously affecting his trustworthiness, which, emanating as it did from a corporation of defendant’s importance, carried with it almost the imprint of truth. We know not how the extent of plaintiff’s»loss may be even approximately ascertained and stated in a pecuniary sense; and since-the record does not show that the jury were actuated other than from conscientious motives, and a proper discharge of duty, or that their deliberation was warped by undue sympathy for the plaintiff, passion or prejudice against the defendant, we are forced to regard their estimate as conclusive. “ I should be sorry,” said Lord Mansfield in Gilbert v. Burtenshaw, Cowp. 230, “to say that in cases of personal torts no new trial should ever be granted for damages which manifestly show the jury to have_been actuated by passion, partiality, or prejudice. But it is not to be done without very strong grounds, indeed, and such as carry internal evidence of intemperance in the minds of the jury. It is by no means to be done where the - court may feel that, if they had been on the jury, they would have given less damages, or where they might think the jury themselves would have completely discharged their duty in giving a less sum. Of all the cases left to a jury, none is more em
