Cate v. Fansler

Opinion of the court by McAtee, J.: It is argued, in the first place, that the court erred in permitting the plaintiff to prove specific damages, over the objection of the defendant in the action, under the allegation of general damages. It is true that special damages must be averred in the petition, in order to notify the defendant of the nature of the plaintiff’s claims, and to prevent surprise to him at the trial, but it is not necessary in a case like the present, with the exception of the claim of damages for the payment of money to secure the discharge of the plaintiff from arrest, where the demand sounds wholly in damages, and there is but a single cause of action, to slate specifically and in separate amounts, the different items which go to make up the total sum for the wrong done. (1 Sutherland on Damages, 763, 770.) *12 The plaintiff below averred nothing exceptional or peculiar in the results which flowed to him from the' prosecution. His declaration of damages suffered includes only such matter as would naturally and ordinary follow to one innocent of a criminal charge, if he should be falsely and maliciously arrested and imprisoned upon the charge of an infamous crime. The rule is that the object of the pleading, to apprise the defendant of the nature of the claim against him, as. well as its extend is satisfied with an averment of- such a sum as damages, and that such a pleading will authorize ¡ the recovery of such damages as naturally and ordinarily flow from such an injury. The deprivation of liberty, the oppression, degradation and disrepute, the mental trouble and anguish of mind,, the loss of good name and business standing and the privation of the pursuit of private business, are the results which naturally and necessarily flow from a malicious prosecution of this character. These are the charges made in the petition; they are the principal items going to, make up the total sum included in the verdict for damages found by the jury, and there is no peculiarity in them requiring that any other or further special' allegation of them should be made than is charged here, in order to, justify the recovery of damages. The pleading is adequate. (Pueblo v. Griffin, 10 Colo. 366; 5 Ency. of Pl. & Pr. 719) But it is also averred that damages were suffered by reason of “the payment of large sums of money in securing the liberty and discharge of the plaintiff from malicious -arrest and prosecution.”, No exception was taken to the sufficiency of this averment in the pleading. The, *13 defendant answered by a general denial. The objection was first made to its sufficiency at the trial, upon the proffer of testimony to support it. We hold the averment to have been sufficient, no motion having been made to make the petition more definite and certain. Complaint is also made in the assignments of error that there is no adequate averment upon which punitive damages could be sustained. The rule is that the petition is adequate if the acts which constitute the fraud, malice, etc., upon which the claim for damages is predicated, are set out in the petition. We consider these acts adequately stated in the petition in this case. (5 Ency. of Pl. & Pr. 723.) Error was assigned that the court did not properly instruct the jury, and disallowed some instructions offered by the plaintiff in error. It is argued that if the plaintiff in error was honestly mistaken about the guilt of Fansler, such honest mistake precludes malice; that if Fansler was actually guilty of the offense charged against him by Ten Cate, it is immaterial how Ten Cate acted in causing his arrest and conviction, but that if Ten Cate acted maliciously, and at the same time had no reasonable cause to believe that the defendant in the criminal case was guilty, then he would be liable in the action, but not otherwise; and that if Ten Cate misunderstood the terms of the transaction between himself and Fansler, and honestly believed that Fansler was guilty of the crime with which he charged him, and ' that the acts and conduct of Fansler were sufficient to warrant the belief, then he would not be liable for malicious prosecution in causing the arrest. *14 The court charged the jury fully upon all these subjects. It expressly said to the jury that they must, find that the defendant acted maliciously in causing the prosecution, and that the prosecution was also commenced without probable cause; that while they might infer malice from the want of probable causé for the institution of the criminal prosecution against the plaintiff, that if they believed from the evidence that the prosecution was commenced without probable cause, still, they were not bound to infer malice from that fact; and that want of probable cause must be made to appear from the evidence or else the jury must find for the defendant, no matter how maliciously the jury might find the motives of the defendant to have been in instituting the criminal prosecution. The court expressly charged the jury that, if they believed from the evidence that the defendant, before he instituted the criminal prosecution “fully, fairly and truih-fully stated all the facts and circumstances in relation to the alleged crime to J. L. Brown, the then county attorney, and that Brown, as such county attorney, advised him that he had reasonable cause to institute the criminal proceedings against the plaintiff, and that the defendant, m good faith, acted upon such advice, then the plaintiff cannot maintain this action, whether the defendant in the criminal prosecution was guilty or not, and the jury should find for the defendant.” The court stated the law to the jury specifically upon the facts in the case, as presented in behalf of the defendant, Ten Cate, and also the proposition of law applicable to the case presented by the plaintiff, and we think with sufficient definiteness. *15 Thirteen other errors are alleged in the brief of the plaintiff in error, but they are stated as matters of opinion only, are stated without authority, and are treated in so light and casual a manner that they are not commended to the serious consideration of the court. Finding no error in the record the case will therefore be affirmed. Burford, C. J., Hainer, J., and Irwin, J., concurring; Burwell, J., dissenting.