Maher v. Wilson

Action for false imprisonment. Plaintiff had judgment, and defendants appeal therefrom and from an order denying a new trial.

Defendants are members of the firm of Wilson Brothers & Co., engaged in dealing in lumber in the city of San Francisco, and in January, 1900, procured a cargo of lumber to be shipped to them from a northern port by the Hale & Kern Contracting Company, of Portland, Oregon, on their barge, at a specified rate per thousand feet. The lumber was measured at the shipping port, but there was some dissatisfaction with the measurement, and it was agreed between Wilson Brothers & Co. and said contracting company that the cargo should be remeasured at San Francisco when it should be taken from the barge, the expense of resurveying the lumber to be borne equally by the parties. Said owners of the barge employed one D. J. Miller, as stevedore, to discharge the lumber from the barge at San Francisco, and on January 28, 1900, wrote him as follows: “Mr. Wilson is not satisfied with the -mil] tally there, and told Mr. Kern that he would pay half to have it tallied in San Francisco; we have written

It appeared from other evidence that Johnson had not witnessed the breach of the peace, and was told he could not make a complaint; that he said he did not want to, that he only desired to have him removed from the wharf. Plaintiff also testified that he was to have six dollars per day, and it would require about eight days to discharge the lumber and make out the manifest; that he was paid by Miller for one day’s work, and twelve dollars for loss of employment; that he was absent from the wharf about an hour and a quarter, about fifteen or twenty minutes of which was spent at the City Hall.

Officer McGraham, called by the plaintiff, testified that he was then acting as bailiff in Judge Conlan’s court; that Johnson made a statement to the judge, and from that statement he took him to Captain Spillane, and the captain sent him to the wharf to see what the trouble was; that Johnson pointed out plaintiff as the cause of all the trouble, and said he wanted •him arrested, and that he served the subprenas upon the witnesses Johnson pointed out. It is not necessary to go over in detail the evidence given on the part of the defendants. It

The jury returned a verdict for the plaintiff, assessing his damages at one thousand dollars. On the hearing of defendants’ motion for a new trial the court made a conditional order, to the effect that if plaintiff would remit one half of said sum the motion would be denied; that otherwise it would be granted. Plaintiff remitted one half of the amount, and defendants’ motion for a new trial was thereupon denied. It should have been granted.

No actual damages were shown. Plaintiff was never employed by the defendants or their firm to survey that cargo of lumber. That Miller, the stevedore, had no authority to employ him on behalf of the defendants or of their firm is clear. Miller was simply informed that the lumber was to be tallied, the expense to be borne equally by that company and the consignee. He had no power to employ a surveyor to represent the defendants; but if he had the power to employ a surveyor for either or both of the principals, it follows that he had the power to discharge the plaintiff, and both the defendants and Miller did discharge him; and if it be further conceded that plaintiff was in fact employed by both firms, it was his duty at once to obey the discharge, and if injured thereby he had an adequate remedy upon the contract for any damage resulting from its breach. He testified explicitly, however, that he was not employed by defendants, or their firm. His contention that when a member of the lumbermen’s association is put upon a vessel he cannot be removed, is based upon a false conception of the purposes and powers of the association. His acts, after his discharge at least, constituted an unwarranted and wholly unjustifiable interference with the property and rights of the defendants, and made him a trespasser and wrongful

Section 3294 of the same code provides: “In any action for the breach of an obligation not arising from contract, where the defendant has been guilty of oppression, fraud, or malice, actual or presumed, the jury, in addition to the actual damages, may give damages for the sake of example, and by way of punishing the defendant. ’ ’ Said sections both relate to the breach of obligations “not arising from contract,” and the only difference between them, as to the liability for a breach, is based upon the presence or absence of “oppression, fraud, or malice.” In the absence of oppression, fraud, or malice, actual or presumed, only actual or compensatory damages can be given. There is no evidence that plaintiff sustained any actual damage. He did not incur any expense in consequence of his arrest, and lost no time. He was absent from the wharf an hour and a quarter, but he had no employment there or elsewhere, and could not lose time or wages by his absence. He testified that he was paid by Miller six dollars for the day’s time, and twelve dollars for loss of employment. Whether Miller was personally liable _o him for making an unauthorized contract, or for its breach, is immaterial. It is clear that defendants were not, and could not be, responsible for loss of any time or for the breach of a contract of employment they never made, approved, or ratified. Having no contract with defendants, and having been discharged by

There is no evidence of malice or oppression. Defendants might have removed him from the portion of the wharf used by them without the aid of an officer, using only so much force as might have been necessary for that purpose. (McCarty v. Fremont, 23 Cal. 197 ; Cooley on Torts, 2d ed., p. 193.) In Berry v. Fletcher, 1 Dill. 72 , Judge Dillon charged the jury: “To authorize the giving of exemplary or vindictive damages, either malice, violence, oppression, or wanton recklessness must mingle in the controversy.- The act complained of must partake of a criminal or wanton nature, 'or else the amount sought to be recovered should be confined to compensation.” (See, also, Kennedy v. North Missouri R. R. Co., 36 Mo. 351 .) The supreme court of the United States, in an action for false imprisonment, said: “It is the settled doctrine that damages are graduated by the intent of the party committing the wrong. It is equally well settled that in the absence of gross fraud, malice, or oppression, in cases of trespass to person or estate, the jury should restrict damages to compensation or satisfaction for the actual injury sustained. . . . The principle of permitting damages in certain cases to go beyond naked compensation is for example, and the

Section 3360 of the Civil Code provides that “When a breach of duty has caused no appreciable detriment to the party affected, he may yet recover nominal damages. ’ ’

In the case before us no actual damages are shown to have been sustained, nor were the defendants guilty of malice or oppression, and therefore they are not liable for exemplary or punitive damages. They have, however, incurred a technical liability, entitling the plaintiff to nominal damages. Such damages are defined by Bouvier (Law Dictionary, “Nominal Damages”) as “A trifling sum awarded where a breach of duty or an infraction of the plaintiff’s right is shown, but no serious loss is proved to have been sustained; ’ ’ or, “where from the nature of the ease, some injury has been done, the amount of which the proofs fail entirely to show. ’ ’ A trifling sum is there said to be “as a penny, one cent, six and a quarter cents.”

In no case for the breach of an obligation, not arising from contract, can there be more than compensatory damages

The judgment and order appealed from should be reversed.

Gray, C., and Chipman, C., concurred.

For the reasons given in the foregoing opinion the judgment and order appealed from are reversed.

Shaw, J., Van Dyke, J.

Angellotti, J., concurred in the judgment.

Hearing in Bank denied.