Tompson v. Mussey

Mellen C. J. delivered the opinion of the Court, as follows. The counsel for the defendant contends that the neglect charged in the indictment against the piaintiif was a clear and direct violation of a well known law; and as it was not and could not be pretended that notice had been given, in the manner the statute directed, these facts of themselves furnished satisfactory proof of probable cause; — and he further contends that the opinion delivered to the defendant by the attorney for the State was proof of probable cause ; and that it was the duty of the plaintiff to furnish proof of the want of probable cause, and that the onus was not on the defendant to show that there was probable cause. In the discussion and application of these principles several questions have been examined. Some of them need not be re-examined and decided by us. For instance, it is unnecessary to determine whether the opinion of the county attorney was, under the circumstances of this case, proof of probable cause; inasmuch as the Judge decided that point in favor of the defendant, if the jury should acquit him of the alleged suppression of an important fact in his testimony before the grand jury; but this they have not done. As the defendant therefore has had the benefit of this principle, so far as the facts of the case would justify the Court and jury in its application to him, he has no reason now to complain on that account. Nor do we think it of importance in this case to examine particularly the question whether the proof of want of probable cause must always be adduced by the plaintiff; or whether proof of probable cause must be adduced by the defendant. Because it is admitted, though not particularly stated in the report, that th» plaintiff introduced proof shewing what was the testimony of the defendant before the grand jury ; the alleged suppression of an important fact well known to the defendant at the time of giving his testimony, was the circumstance relied on to shew a total want of probable cause ; and this fact was proved by the plaintiff. The jury have decided that there was this suppression. But the counsel for the defendant has said that the fact was, or might have been omitted by mistake or forgetfulness; and then could not be imputed to him as evidence of want of probable — 310 — cause. The language of the Judge, however, was that if he £C did not state or testify this fact, as he was bound to do —and this language could not have been misunderstood by the jury ; or construed to mean or embrace the case of omission by mistake or forgetfulness. Every man would understand that he was speaking of an intentional and fraudulent suppression of the fact alluded to. We are thus led directly to the point, whether the Judge was correct in his decision that the fact thus suppressed and concealed from the knowledge of the grand jury was proof of the want of probable cause ; and this leads us to the fact itself. It was proved that no notice of the time and place when the assessors would be in session to receive evidence of qualifications of persons whose names were not on the list of voters, was inserted in the copies of the warrants posted up, notifying the town, meeting. But such notice was posted up on a separate piece of paper, adjoining or near to each of the copies of the warrant. This fact, the verdict finds the defendant knowingly suppressed and concealed from the grand jury. The counsel for the plaintiff has argued upon the singular provisions of the law in requiring the assessors to give the notice before mentioned by causing it to be inserted in the warrant for calling the town meeting ; which warrant was issued by the selectmen ; over whom or whose actions the assessors can have no control. This provision is certainly not very reconcilable with the rights, duties and liabilities of selectmen and assessors respectively. We do not, however, deem it essential in the decision of this cause, to pursue this inquiry. And now what is probable cause ? Various definitions of it have been given ; and from the nature of the case there must be a vast variety of facts which may constitute it; and perhaps in no two cases will the facts be in all respects similar. Hence the necessity of some general character as to the facts which constitute this probable cause. In Smith v. McDonald 3 Esp. 7, Lord Kenyon nonsuited the plaintiff because, at the trial of the indictment, the evidence offered to the jury caused them to pause ; and this he held proof of probable cause. With all due respect we would observe that this seems a most uncertain criterion. In many cases the reason of their pausing may be wholly unknown, — may be accidental, without any motive, and — 311 — perhaps from motives of personal convenience ; perhaps from personal feelings on the part of one or more of the jury ; in fact, from reasons of no importance and having no connection with the merits of the cause. In the page of Buller to which the Court have been referred, no criterion or rule is given, but only general principles are stated. In Leigh v. Webb 3 Esp. 165, Lord Eldon nonsuited the plaintiff, on the ground that the evidence did not support the declaration ; and that the defendant had never made against the plaintiff a charge of felony. The case has no application here. In Reynolds v. Kennedy 1 Wils. 232, the sub-commissioners had condemned certain goods on the defendant’s information ; and this appeared on the plaintiff’s declaration. The cause was decided expressly on the ground that the prosecution was not malicious — not a word is said about the want of probable cause. In Whitney v. Peckham 15 Mass. 243, there had been a conviction of the plaintiffbefore a justice of the peace; and an acquittal on the appeal in the Court of Common Pleas. In the absence of all other proof, this conviction was deemed sufficient evidence of probable cause. The definition of probable cause as given in % Munford, is founded on and includes the idea, of perfect fairness on the part of the defendant in the prosecution, excluding all supposition of art or concealment of material facts. The definition given by Weston J. in delivering the opinion of the Court in Ulmer v. Leland 1 Greenl. 135, is this — “ Probable cause in general maybe “ understood to be such conduct on the part of the accused, as “may induce the Court to infer that the prosecution was under- “ taken from public motives.” We perceive no reason to question the accuracy of this description or definition of probable cause, nor the sound good sense of it. Testing the conduct of the defendant before the grand jury, in suppressing'his knowledge of the fact in relation to the assessors’ notice in the manner it was given, by the rale laid down in Ulmer v. Leland, we are satisfied, not merely that probable cause has not been proved ; but that the want of it has been proved. For, admitting that the requisitions of the statute had not been in strictness complied with ; still the notice was given, in all probability, as effectually, as if it had been inserted in the warrant of the selectmen. And there is — 312 — strong ground for believing, that if the defendant had fairly and frankly testified before the grand jury to all the facts he knew in relation to this subject, no indictment would have been found. On the whole, we are of opinion that the cause was submitted to the jury on proper and legal principles, and that on the grounds which we have been considering there is no foundation to support the motion to set aside the verdict. As to the motion at common law for a new trial on the ground of excessive damages ; we are not disposed, because it is not necessary, to review and examine the merits of the long catalogue of cases in the books wherein similar motions have been made and decided. Numerous cases have been cited and commented upon at large by the counsel. We shall close this opinion with one or two general observations, and by extracting from the cases on this subject the spirit of the decisions and the general principle that must govern. It has been urged that actions of this kind are not to be favored; that they have a tendency to discourage prosecutions, and thereby indirectly produce an injury to the community. We wish it to be understood that no particular class of actions is to be favored or discountenanced in our Courts of justice. These terms when applied in this manner, we hope will be considered as destitute of meaning, in respect to the administration of the laws, where legal principles are the rules of decision. So far as proceedings in our Courts are governed merely by the discretion of the Judges, it is to be desired that they should always have a steady eye to the substantial justice and equity of the case, and the protection of rights from .a particular danger, to which they might be exposed by the rigid application of a general principle of law. What are excessive damages ? No answer can be given applicable to all cases. Each cause has some peculiar features, which a Court has in view in deciding whether excessive damages have been given. Dilferent Courts and Judges have labored to find some language adapted to convey the general idea with as much distinctness and precision as possible; so that the decision might be afterwards considered as a rule by which to decide subsequent cases. This uncertainty as to the rule exists principally in cases of tort. In those of contract there is almost in every case a plain — 313 — rule bj which to estimate damages. The difficulty exists in that class of actions where compensation is sought for injuries arising from pas'sion, cruelty, malice or violence. Thus in Leeman v. Allen 2 Wils. 160, the Chief Justice says, “if damages 41 be unreasonable and outrageous indeed; as if 2000Z. or 30001. was “ to be given for a little battery, which all mankind might see to “ be unreasonable at first blush ; certainly a Court would set “aside such a verdict.” And in Ash v. Ash Comb. 357, Lord Holt says, (speaking of damages in actions for tort) “the Court “ must be able to say the damages are beyond all measure unrea- “ sonable.” In Huckle v. Money 2 Wils. 205, the Lord Chief Justice says, “it is very dangerous for the Judges to intermeddle “ in damages for torts; it must be a glaring case indeed of out- “ rageous damages in a tort, and which all mankind at first blush “ must think so, to induce a Court to grant a new trial for excessive damages.” In Gilbert v. Burtenshaw Cowp. 230, Lord Mansfield says, when speaking of granting new trials in cases of torts, “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 ; unless it appears that the damages are “ flagrantly outrageous and extravagant, it is difficult for the “ Court to draw the line.” In Beardmore v. Carrington 2 Wils. 244, in an action of trespass and false imprisonment, the Court say, “ we desire to be understood that this Court does not say, or lay “ down any rule, that there never can happen a case of such “excessive damages in tort, where the Court may not grant a “new trial; but in that case the damages must he monstrous and “ enormous indeed ; and such as all mankind must be ready to “ exclaim against at first blush.” In Duberley v. Gunning 4 D. & E. 651, the jury gave 5,000Z. damages. On motion for anew trial it was refused. Buller J. says, “ the only power which the “ Courts now claim is to send the cause back to another jury, “ when they think that the damages given are enormously dispro- “ portioned to the case given in evidence.” In Bruce v. Rawlins 3 Wils. 61, Yates J. says, “ the case must be very gross and the “damages enormous, for the Court to interfere.” In Coffin v. Coffin 4 Mass. 1, Parsons C. J. says, “before we can set aside “ this verdict on account of these damages, we must infer from — 314 — ££ their magnitude, ($2,500) under all the circumstances of the ££ case, that the jury acted intemperately, or were influenced by ££ passion, prejudice or partiality.” In Southwick v. Stevens 10 Johns. 443, the Court say, that in actions for libels and torts, they will not set aside a verdict on the ground of excessive damages, unless they are flagrantly outrageous and extravagant. In McConnell v. Hampton 12 Johns. 234, Thompson C. J. says, ££ that to justify the Court in granting a new trial in “ cases of torts, the damages ought to appear outrageous, and ££ manifestly to exceed the injury, and such that all mankind would at once pronounce unreasonable, and induce the Court to ££ believe that the jury must have acted from prejudice or par- ££ tiality —and Spencer J. says,£ 1 to justify the granting of a new ££ trial the damages must be flagrantly outrageous and extrava££gant; evincing intemperance, passion, partiality or corruption.” This case was cited by the defendant’s counsel. It was an action of assault, battery and imprisonment by the defendant a military commander. The jury gave a verdict for $9,000, — and the Court granted a new trial on the ground that the damages were excessive ; it appearing that little or no personal violence and injury had been done, though there was imprisonment and highly abusive language, threats and insults. Comparing the facts in this case with the principal part of those cases which have been above noticed, and applying the principle of law as to granting new trials for excessive damages, as laid down in those cases, we are to decide whether the present cause is presented to us as coming within the range of the principle. • The plaintiff’s damages have been estimated by two successive juries in different Courts — and there is a difference of fifty dollars only between the two estimates. The verdict in. this Court having been given for the larger sum. The jury had before them all the facts, in relation to the plaintiff’s injuries in point of property, character and feelings ; and to the defendant’s disposition to effect his purpose of causing the plaintiff’s conviction ; and to the measures which he adopted with a view to accomplish that purpose ; and also the evidence in relation to the character and property of the defendant. Looking at all the — 315 — fads, vve do not feel ourselves authorized to say that the damages are excessive, extravagant, and flagrantly outrageous, or that the jury were actuated by any reprehensible motives; this motion at common law therefore, cannot be sustained. There is one other idea stated by the counsel when commenting on the Judge’s instructions to the jury, on the subject of damages, and the circumstances which they might take into consideration. Tie instructed them that they might, among other things, notice the ignominy of being arrainged at the bar of justice as an offender against the law. And wdiy might they not ? Was it no ignominy to be arraigned on indictment for neglecting a duty which he had solemnly sworn to perform ; and on a charge affecting his character as an officer in the town ? We see no impropriety in this allusion. He stated only what was a fact, and informed them they might consider it in their estimate of damages. It will thus be seen that it differs from the case of Sampson v. Smith 15 Mass. 165, cited by the defendant’s counsel. There the Judge intimated his opinion to the jury upon a point of law, the natural and obvious tendency of which was to incline the jury to give greater damages than they would otherwise probably have assessed. As the Court on reviewing this intimated opinion were all satisfied it was incorrect, they set aside the verdict and granted a new trial, so that another jury might estimate the damages upon those principles of law applicable to the character and authority of the defendant, as master of a vessel. Our opinion is that neither of the defendant’s motions can prevail, and accordingly there must be judgment on the verdict.