CHARLES KINSEY v. JOSEPH WALLACE, PHILIP L. WEAVER, J. B. WOOSTER, and GEORGE H. SANDERSON, 36 Cal. 462

By the Court, Crockett, J. : However plausible the criticism on the passage in the charge of the Court, discussed in appellants’ first point, may seem at first blush, it will be found, when considered in connection with the facts admitted by the pleadings, the testimony, and the other instructions given, that there is nothing in the point to justify a disturbance of the verdict. The answers are evasive, and the leading facts must be regarded as admitted by the pleadings, the denials extending only to the wrongful character of the acts alleged in the complaint, and the motives by which the parties were actuated.

The denials of the defendant, who answers separately, it is true, are less guarded, and we cannot forbear remarking here, that he displays a recklessness in verifying his pleading, in view of the facts unquestionably established by the evidence, in a high degree reprehensible, but, it must be confessed, too frequently found in the records of our judicial proceedings.

But both upon the facts, which must be taken to be admitted by the pleading, and upon the evidence, it clearly appears that the indebtedness upon which the attachment suit was commenced was secured by a mortgage, and the time for payment, under the conditions of the mortgage, had not transpired, and no action upon it could then be maintained. Ho attachment could be lawfully made under the statute, and, at that time, the parties were in no position to maintain an action to recover the money.

The giving of the mortgage and agreement to pay in coin was a sufficient consideration for the extension of the time of payment. The parties may have made an unfortunate arrangement, but they entered into it voluntarily, and were bound by it. There was nothing doubtful in the law, or facts. There was nothing in the testimony upon which to ground “a suspicion founded on circumstances sufficiently strong to warrant a reasonable man in the belief” that there was a cause of action existing upon which an attachment could issue.

There was nothing in the testimony to justify the jury, under any charge which the Court could properly give, in finding differently from what they did upon the questions of fact, disclosing a want of probable cause. The testimony of the defendants did not obviate or avoid, or in any degree tend to obviate or avoid, the case of want of probable cause made by the pleadings and testimony of the plaintiff, but, on the contrary, it went to show still more forcibly and conclusively, that the suit was brought and attachment issued without probable cause.

So far as this case is concerned, then, the element of a well grounded belief, which, appellants insist, should have been taken into account in the charge of the Judge, would have been abstract. But, however this may be, there is nothing in the case that could possibly justify a different verdict on this point. Besides, the Court, in a very clear and pointed instruction, given at the defendants’ request, which could not be misunderstood, stated the rule with the desired qualification fully and distinctly expressed. The jury could not have been misled in this case by the omission in another part of the charge.

The jury could have had no difficulty in understanding the charge, and we have before remarked that there was nothing in defendants’ evidence tending to overcome the proof of want of probable cause; but, on the contrary, it was strengthened, and made more clearly manifest. That the defendants, Weaver, Wooster, and Sanderson, were aware of the facts out of which the attachment suit grew, the testimony all shows, so far as it bears on the question, with nothing tending to show that they did not.

In addition to the other testimony, Weaver himself, who appears to have been most active in forwarding the suit, in his testimony pointedly says: “I knew the mortgage had been taken from having been told so by my partners.” So he and his partners knew the facts.

And more, Weaver again says in confirmation of Sharpstein’s testimony to the same effect: “I did tell Sharpstein that when we got out the attachment in the suit of Wallace, we knew it would not stick or hold because we had a mortgage security for the debt” So he, at least, not only knew the facts, but the law applicable to the case, and he says: “ We knew it,” that is, he and his two partners, at least, if he did not intend to include all having anything to do with the matter. It is impossible to come to any other conclusion, from the testimony, than that the other two were equally well informed with himself.

While all the circumstances conspire to satisfy the mind of.their knowledge, there is nothing tending to or by inference justifying the contrary conclusion. Wooster was also on the stand, but was ominously silent upon the question of his knowledge upon this point. MeCombe, one of defendants’ witnesses, and the manager of the transaction, also says: “I was employed by Weaver, Wooster Co: to commence this suit, and get out the attachment, and to use the name of Wallace as plaintiff.

There was an understanding between Wallace and me, that I might use .his name whenever I wished, for any such purposes, to give him part of my commissions.” Weaver, Wooster & Co. paid the costs, expenses, etc.; found bondsmen, etc., and were the active parties. Starr, defendants’ witness, testifies that “between the levy and dismissal of the attachment he had a conversation with Weaver, Wooster, and Sanderson” about a compromise. They all, therefore, knew what was going on, and yet the suit was prosecuted till the attachment was dissolved by the Court after a contest upon it.

There is nothing from which ignorance on the part of either can possibly be inferred.

As to the other defendant, who seems to make a business of lending his name for hire to others to use in prosecuting suits, which the real parties in interest are ashamed, or, for more substantial reasons, decline to prosecute in their own names; who gives his con- • federate a carte blanche to use his name as he sees fit, without informing as to the circumstances or facts, and shares the compensation, he cannot afterward shield himself from the consequences on the plea of ignorance, or on the pretense that he might possibly have supposed there was a good cause of action.

Such, according to the uncontradicted testimony of the defendants themselves, was his position in this case. MeCombe was authorized “to use his name whenever [he] I wished, for any such purpose.” Hor does Wallace deny the authority, but in his answer admits that he commenced the suit, and ostentatiously assumes the responsibility. As to McCombe, the agent, he undertook the business under such circumstances that he was bound to ascertain the facts rather than avoid inquiry.

The mortgage, too, was on record, and if he did not in fact know of the mortgage before the commencement of the suit or the actual levy, he was immediately informed of the fact upon the levy being made and before he left Pescadero, and still he did not then abandon the proceeding, but prosecuted it till the Court, upon a contest, dissolved the attachment, and all hopes of success had become dissipated. These facts appear from his own and the defendants’ testimony.

There is nothing tending in any degree to break the force of these facts, or to justify the jury in finding in McCombe a well grounded suspicion that there was probable cause, and Wallace, under the circumstances of the case, is in no better position than he. There is nothing in the first point to justify a ’disturbance of the verdict. There was no error in refusing the instruction mentioned in defendants’ second point. Much that was said with reference to Wallace under the last point applies to this.

It is not the ordinary case of principal and agent, where the principal gives authority to the agent to perform his lawful business, and in the performance of that business the agent takes occasion to maliciously injure a third party. In this case one party gives another unlimited authority to use his name at his discretion for the purpose of bringing suits like the one in question, and shares the compensation. Wallace does not repudiate the act after it comes to his knowledge, but avows in his sworn answer that it was performed by his authority.

He denies malice, conspiracy, etc., it is true, and sets up a claim as the party who, for his own benefit, independent of any action of Weaver, Wooster & Co., had prosecuted the suit. It turns out in the evidence that he has no real interest in the demand, but is a mere willing instrument in the hands of other parties for the accomplishment of an unlawful purpose.

The instruction is that “if he did not personally know of or direct the attachment, then he is not personally chargeable with any malice on the part of MeCombe, * * * and, as against him, the element of malice must be left out of consideration.” This is certainly not correct, thus broadly stated, especially as applied to the testimony of this case.

If he authorized others in advance, at their discretion, to bring suits, for third parties in his name, for the purpose of maliciously and unlawfully harassing the defendants in such suits, upon the consideration that he should divide the compensation received, the fact that he did not at the time know of or direct any particular proceeding within the general scope of such authority, would not exonerate him from liability for malice in the prosecution. There was enough in the case to require a qualification to this instruction.

The jury should also, at least, have been told that they must be satisfied that Wallace had not concurred in, approved, or adopted the acts of MeCombe, after they ha.d been done. But the case was fully and clearly stated to the jury upon this point, and in terms as favorable to defendant Wallace as he was entitled to, in another pointed and carefully drawn instruction, given at the request of defendants.

The several instructions given at the request of the defendants covered every point in their favor which was omitted or not brought out with sufficient clearness, if any such there was, in the general charge given by the Court. We think defendants’ third point untenable. We do not perceive the materiality of the instruction referred to in appellant’s fourth point, and, in our opinion, it could have made no difference to the defendants whether it was given or refused.

The only remaining point worthy of consideration is, whether or not the damages awarded by the jury are excessive, and appear to have been given under the influence of passion or prejudice.

Whilst there was much in the conduct of the defendants, and particularly of the defendant Wallace, as disclosed by the evidence, which was in a high degree reprehensible, and might well have justified the jury in awarding a considerable sum as punitive damages beyond the actual pecuniary loss of the plaintiff, nevertheless, in our opinion, the large sum of seven thousand six hundred dollars, at which the damages were assessed, is out of all just or reasonable proportion to the damages, pecuniary or otherwise, suffered by the plaintiff, or to the offense committed by the defendants.

That the actual pecuniary loss to the plaintiff resulting from the attachment was comparatively inconsiderable, is quite apparent from the evidence; but the jury very justly exceeded this sum, on account of the reprehensible conduct of the defendants. We think, however, they exceeded all reasonable limits, and that a verdict for a sum so greatly disproportionate to the actual damage of the plaintiff, under the facts of the case, is of itself sufficient evidence that it was rendered under the influence of passion or prejudice.

There is no inflexible or definite rule by which Courts can be governed in reviewing verdicts in such cases; and each case must, in the nature of things, depend more or less on its own circumstances. But whilst we do not desire to restrict juries within very narrow limits, in assessing damages in this class of cases, the ends of justice demand that we should not allow verdicts to stand which so far exceed all reasonable bounds as to raise a just presumption that they proceeded from passion or prejudice.

We think this verdict is of that character, and we deem it to be our duty to reverse the judgment for that reason, unless the plaintiff shall remit the excess.

It is, therefore, ordered, that if, within twenty days next succeeding the filing of this opinion, the plaintiff 'shall file in this Court a stipulation in due form remitting the sum of four thousand six hundred dollars from the judgment in favor of the plaintiff, and consenting to a reduction of said judgment to that extent, the said judgment, in that event, shall be affirmed as to the remainder thereof; but if the plaintiff shall fail or n’egleet to file said stipulation within the said period above prescribed, then that said judgment be reversed and said cause remanded for a new trial.