Parmalee v. Baldwin

Swift, Ch. J. This is an action against the defendants as select-men for appointing an overseer to the plaintiff maliciously, and without probable cause ; and no special damages are alleged in the declaration. On the trial, the plaintiff produced the appointment of an overseer without limitation of time ; which was, of course, null and void. The court instructed the jury, that the plaintiff was entitled to recover on proving malice and want of probable cause, though no special damages were alleged. In actions for torts, where the law necessarily implies that the plaintiff has sustained damage by the act complained of, it is not necessary to make an allegation of special damages in the declaration ; but where the law does not necessarily imply such damage, it is essential to the validity of the declaration that the resulting damages should be stated with particularity. Where a valid appointment of an overseer is made from malice, and without probable cause, the law will imply damage ; for the party is deprived of the power of making contracts, and of transacting business. But if the appointment be a nullity, it imposes no such restraint; and if the party suffers no inconvenience from it, no action will lie. If, however, he sustains any special injury by such void appointment, an action will lie ; but as the damage does not necessarily result from the appointment, he must specially allege such damage to entitle him to recover. In this case, as the plaintiff proved the appointment of an overseer which was an absolute nullity, she failed to prove her declaration ; and as there was no averment of special damages, it was not competent for her to prove them. Of course, she was not entitled to recover; and the court ought so to have instructed the jury. In cases like the present, it is essential for the plaintiff to prove malice and want of probable cause ; and the failure of [318] the defendants to prove any fact that might exculpate them is no evidence of malice. It was, therefore, incorrect for the court to charge the jury, that the select-men are in any case bound to shew that the party to whom an overseer is appointed, was, on enquiry by them, in their opinion, guilty of mismanagement and bad husbandry to such a degree as to bring the case within the statute, and to render the appointment necessary and proper; otherwise it was evidence of malice, or improper motives, proper for the consideration of the jury. This would be in a measure to throw the burden of proving their innocence on the defendants. They may act in such case from their own knowledge, and they alone could testify what their opinion was ; and as they cannot be witnesses, it would be impossible for them to rebut this presumptive evidence of their guilt. In this opinion the other Judges severally concurred. New trial to be granted.