McMorris v. Howell

The defendant appeals from a judgment, entered on the verdict of a jury, awarding the plaintiff damages in the. sum of $500 and costs for two alleged malicious prosecutions and one false imprisonment by the defendant, and also from an order denying the defendant’s motion for a new trial.

In the month of March, 1901, John J. Welstead and James E. Jennings were both claiming title to a certain building at Southampton; the former under a deed delivered to him in March, 1899, by one

The first malicious prosecution alleged in the complaint in this action was instituted by the defendant upon an information charging the plaintiff with having violated subdivision 3 of section 640 of the Penal Code, which provides: “A person who wilfully * * * severs from the freehold of another * * * anything attached thereto * * * shall be deemed guilty of a misdemeanor.” To sustain this action, it was necessary for the plaintiff to show that the prosecution for malicious mischief was instigated by the defendant; that it had been terminated in the plaintiff’s favor; that there was no probable cause for the prosecution, and that the defendant acted from malice. Vanderbilt v. Mathis, 5 Duer, 304 ; Bigelow’s Cases on Torts, p. 58. Probable cause has been variously defined as “reasonable cause, such as would operate on the mind of a discreet man; * * * probable cause, such as would operate on the mind of a reasonable man.” “There must be such a state of facts as would lead a man of ordinary caution and prudence to believe and entertain an honest and strong suspicion that the person is guilty.” Cooley on Torts (2d Ed.) p. 209. “Probable cause for preferring a charge of crime is shown by facts, actual, or believed by him (the plaintiff) to be actual, which would create a reasonable suspicion in the mind of a reasonable man.” Bigelow on the Law of Torts, p. 98. The jury had first to determine, then, whether there was probable cause for the prosecutions instituted by the defendant against the plaintiff, within the meaning of that term as here defined. In view of the fact that the record shows the defendant was an attorney at law who had been in active practice for 15 years; that he was at the time of both ar

In Wass v. Stephens, 128 N. Y. 123 , 28 N. E. 21 , the essential facts were singularly like those in the case at bar. In that case the defendant, who owned or had control of certain waterworks, entered into a contract with the park commissioners of the city of Brooklyn to supply water to Prospect Park, and the defendant’s pipes were connected with the mains belonging to the city, which were under the control of the commissioners. On account of an alleged failure of the defendant to perform certain conditions of the contract, the commissioners ordered the plaintiff, who was inspector of parks in Brooklyn, to disconnect the defendant’s pipes. This the plaintiff did in a proper manner,. causing no unnecessary injury to the defendant’s property. The defendant, knowing that the plaintiff was acting under the orders of the park commissioners, who were his superior officers, presented to a magistrate a verified complaint, which did not disclose the plaintiff’s official relation to the commissioners, or the circumstances under which he acted, but alleged that he “did commit a misdemeanor, to wit, by maliciously and wilfully cutting the water main” of defendant, against the statute (Pen. Code, § 639), which provides that “any person who wilfully or maliciously displaces, removes, injures or destroys * * * a pipe or main for conducting water or gas * * * is punishable by imprisonment for not more than two years.” The plaintiff was arrested under a warrant, and the proceedings were subsequently terminated by his discharge. In affirming a judgment of the General Term, which affirmed a judgment in favor of the plaintiff, entered upon a verdict in an action brought to recover damages for malicious prosecution, the Court of Appeals said, in an opinion by Judge Andrews:

“When the defendant applied to the magistrate for a warrant, he was chargeable with knowledge that in obeying the directions of the park commissioners the plaintiff had not ‘maliciously and willfully’ disconnected the pipes, as charged in his complaint. He did not disclose to the magistrate the relation in which the plaintiff stood to the commissioners, or the circumstances under which he acted. * * * While it is true that what constitutes probable cause, where an arrest has been made, does not depend upon the question whether an offense has been actually committed, or upon the innocence of the accused, but upon the prosecutor’s belief of his guilt, based upon reasonable grounds, nevertheless, applying this test to this case, the jury were justified in their conclusion that the defendant had no reasonable ground for believing that the charge made by him was true. The plaintiff intentionally disconnected the pipes, and it may be conceded in so doing violated a right of the defendant. But the word ‘willfully’ in the statute means something more than a voluntary act, and more also than an intentional act which in fact is wrongful. It includes the idea of an act intentionally done with a wrongful purpose, or with a design to injure another, or ohe committed out of mere wantonness or lawlessness.”

So, in the case here under review, the magistrate who issued the warrant in the first prosecution, and before whom the plaintiff was taken in the second instance, was not informed of the fact that the plaintiff was not acting independently, but under the direction of one claiming title to the property. He therefore had nothing to lead him to any conclusion but that the plaintiff had acted with a wrongful purpose. If the word “willfully,” as used in section 639, has the meaning assigned to it by the Court of Appeals, there is no reason why it should have a different meaning in section 640, where the construction is precisely the same. The Wass Case is a conclusive authority on the point.

The jury’s conclusion that the second malicious prosecution was without probable cause was fully sustained by the evidence, and we believe the existence of malice was, in both instances, a fair deduction. Bigelow on the Law of Torts, pp. 16-20, 106, 107. In addition to what has been said in regard to the first prosecution, which applies also to the second, it seems clear that the plaintiff, on the occasion when he was taken into custody by the officers, had done noth-' ing to render himself liable to apprehension as a criminal—as “a person, guilty of using, or of procuring, encouraging or assisting another to use, any force or violence in entering upon or detaining any lands or other possessions of another, except in the cases and the manner allowed by law.” Pen. Code, § 465. The plaintiff was merely going into the building to work, as he had been doing daily since his first arrest and discharge, and with the knowledge of the defendant. No force would have been necessary if the defendant had not taken a position squarely in the doorway. Only the slightest force appears to have been used by the plaintiff at any time until there was an unlawful attempt to accomplish an actual restraint of his person by the defendant and the officers, when he probably was acting in self-defense. Neither the officers nor the defendant had the right to arrest the plaintiff. He was not committing or attempting to commit a crime in their presence, and it is not claimed that he had at any time committed a felony. Code Cr. Proc. §§ 177, 183. The defendant rendered himself liable by directing the officers to make

“It is obvious that this proof falls altogether short of that which the well-settled rules of law require. The case shown is that of a mere ordinary entry, made under claim of title. If the defendant has no title, it is a common trespass. There was no great or unusual force; there was no terror; and, if there was either, it could not relate to the person of the prior occupant. There were no unusual weapons; no acts of violence; no menaces, threats, signs, or gestures, which could give any ground to apprehend injury or danger from standing in defense of the possession. The case is not brought within the words of the statute or the mischief it was designed to prevent.”

The defendant concedes that “Mr. Jennings was entirely satisfied -with the improvements” the plaintiff was making, and that he “did not consider his work or his occupation and possession there as adverse at that time,” and “did not consider it as injuring Mr. Jennings’ title.” It seems, then, that the strenuous activities of the defendant were directed to the securing of a bare possession of the premises. It would be a strange doctrine to announce that rival claimants to the possession of real property can each at will exercise the well-guarded right to arrest without warrant, in an effort to maintain a momentary occupancy gained during the other’s temporary absence. Possession of a less scrambling and disorderly character may readily be secured by a person holding a conveyance of lands sold for unpaid taxes in the manner prescribed by section 154 of the tax law (chapter 908, p. 849, Laws 1896). In the absence of a substantial basis for arrest and criminal prosecution, this. procedure recommends itself to the consideration of persons desiring the possession of real property under claim of title by virtue of tax sales.

The judgment should be affirmed, with costs. All concur.