Sprague v. Gibson

In Carl v. Ayers, 53 N. Y. 17, Andrews, J., said: “Probable cause, which will justify a criminal accusation, is defined to be a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in his belief that the person accused is guilty of the offense with which he is charged. * * * Public policy requires that a person shall be protected who, in good faith and upon reasonable grounds, causes an arrest upon a criminal charge; and the law will not subject him to liability therefor. But a groundless suspicion, unwarranted by the conduct of the accused, or by facts known to the accuser, when the accusation is made, will not exempt the latter from liability to an innocent person for damages for causing his arrest. A man has no right to put the criminal law in motion against another, and deprive him of his liberty, upon mere conjecture that he has been guilty of the crime. He cannot be allowed to put a false and unreasonable construction on the conduct of another, and then justify himself for causing an arrest by claiming that he acted upon appearances.” Applying that rule to the facts of the case as they were delivered upon the trial now brought in review, we are of the opinion that the circuit judge properly refused to hold, as a matter of law, that the plaintiff could not recover, and we are of the opinion that the case was a proper one for the jury. The doctrine of the case from which we have quoted was followed in Hazzard v. Flury, 120 N. Y. 223, 24 N. E. Rep. 194.

2. In the course of the charge the judge instructed the jury that, in case they find the plaintiff “is entitled to recover at all, he is entitled to his compensatory or actual damages anyhow. * * '* There is not in this case, as *687frequently there is in cases, money paid out for counsel, in order to relieve plaintiff from the prosecution. There was no trial, no counsel employed, as you will recollect; but while the search was going on, upon talk and consultation, it was stopped, and that was the end of it. There was no counsel called upon to aid in the proceedings, so there was no money paid out for counsel fees. The plaintiff is entitled to recover such amount as would fairly compensate him—if he is entitled to damages at all—for the injury to his character, the indignity to his feelings, and the disgrace naturally attendant upon this prosecution. That is about all I can say to you upon this subject. There is no established rule by which to measure those things. They are left to the discretion of the jury.” It is now insisted by the learned counsel for the appellant that error was committed by the trial judge in refusing “to say to the jury that there is no proof in this case of any actual damages.” An exception was taken to such refusal. We think the charge, as delivered, in effect covered the question raised by the request, and that the judge was not called upon to repeat in answer to the request. The charge, as delivered, was very full and careful, and there is no exception thereto which presents any error. We think no error was committed in any refusals that were made to the requests propounded by the defendant. Appellant calls our atttention to Turner v. Dinnegar, 20 Hun, 466. We find nothing in that case contrary to the principles laid down by the trial judge in his charge.

3. In the course of the cross-examination of the chief of police, he stated that he remembered the defendant coming to him, and stating his loss of $310, some two weeks before the warrants were issued. At folio 46, witness testified: “I don’t recollect positively giving him any advice about getting a warrant.” He next answered: “The best of my recollection would be, I did advise it.” He next testified: “I don’t remember of it.” He was then admonished by the court: “You should not state it, then.” Thereupon the witness says: “I don’t remember advising him. There are so many of those cases—I don’t remember—it is a hard matter. * * * I don’t remember any particular one, so as to be able to give it distinctly, unless there is something about it which calls my attention especially to it.” If the intimations of the trial judge in the early part of the cross-examination were too stringent, we think, before the cross-examination terminated, the defendant obtained all the evidence which the witness could give upon the questions in issue. We therefore think the language of Judge Bockes in Johnson v. Comstock, 14 Hun, 243, is applicable, where he says: “It is true, as a general proposition, that a party is entitled to have his case tried upon an entirely correct theory of law; but when it appears well determined, on an application of sound principles, erroneous rulings, which do not and cannot affect the merits, constitute no ground of error. ”

4. We are of the opinion that the damages are not excessive, and the trial judge properly refused to set aside the verdict. Johnson v. Comstock, 14 Hun, supra. Judgment and order affirmed, with costs.

Martin, J., concurs. Merwin, J., concurs in result.