
    CASSIN against DELANY.
    
      Court of Appeals ;
    
    
      March Term, 1868.
    Httsbabb abb Wife.—Evidence.—Excessive Damages.—Reversal.
    Where a prosecution, is maliciously instituted by a husband and wife, the latter acting in the presence, and by the direction of the husband,, she is not personally liable for damages.
    In an action against her for malicious prosecution it is competent to show, for the purpose of rendering her liable, that she acted of her own motive, and not by the command of her husband, although in his presence.
    The testimony of the husband is competent, in such a case, to show that she acted by his direction and under his authority;' and its exclusion is error for which a judgment should be reversed.
    In an action in which there has been a recovery of judgment for unliquidated damages for a malicious wrong, the court, although they have power to reverse the judgment on the ground that the damages are excessive, have no power to fix the amount for which the judgment shall be allowed to stand, if the plaintiff will consent to a reduction. Where the damages rest in the discretion of the jury, or are for a tortious act, the reversal must be absolute, and it is only upon a new trial that they can be determined anew.
    Appeal from a judgment,
    
      This action was "brought "by James Cassin against Lawrence Delany, and Ann A., his wife. Plaintiff alleged that in November, 1855, the defendant preferred a charge of embezzlement against him, before one of the police justices of the city of New York, and procured his arrest thereon, whereby he was required to enter into a recognizance for appearance at the court of general sessions.
    Defendants preferred their complaint before the grand jury, but the case was dismissed. The plaintiff thereupon brought this action in the court of common pleas of the city of New York, for malicious prosecution and false imprisonment, laying his damages at the sum of ten thousand dollars.
    The referee before whom the cause was tried, found for the plaintiff, and awarded one thousand dollars as damages; and judgment having been entered therefor, the defendants appealed to the court at general term. The ground of the appeal sufficiently appears in the following opinion of the court of appeals. The court of common pleas, at general term, deemed the damages excessive, and accordingly ordered the judgment to be reversed on that ground, unless the plaintiff would stipulate to reduce the recovery to the sum of two hundred and fifty dollars. This stipulation he gave, and the judgment was affirmed for that amount. Thereupon the defendants appealed again to the court of appeals.
    
      Gilbert Dean, for the defendants, appellants.
    I. The referee erred in not dismissing the complaint as to the defendant Ann Delany. (1.) “For torts committed by the wife, by order of the husband, or in his company, he alone is liable” {Reeve's Dom. Relations, 72; 2 Kent Com., 179). (2.), “ A fevie covert is so much favored in respect of that power and authority which her husband hath over her, that she shall not suffer, any punishment in committing a bare theft in company with, or by coercion of her husband ” {Bacon's Abr., tit. Baron & Feme, G.). (3.) Modern legislation, though it has, as to the property of , the wife, made a married woman a single female, has not, as to torts, released her from the presumption, sub potesiate viri. (4.) The evidence of Mrs. Delany, that she was not under her husband’s compulsion, taken in connection with the fact that she knew if she did not go, she would “ displease him,” shows exactly the case in which the law protects the wife. (5.) The court below, in its opinion as to the onus probando in the case of an act of a married woman in the presence of her husband, has either confounded “torts” with felony, or overruled the doctrine of the elementary writers.
    II. That portion of the report which finds that the defendants caused the arrest and imprisonment of the plaintiff is erroneous. (1.) The evidence is undisputed that the plaintiff was never arrested or imprisoned on the complaint of the defendants ; but that the arrest was on the charge of Delany, on the 20th of November. For this imprisonment the plaintiff had sued Delany, and the action.is pending. (2.) The report should have been set aside for this cause alone, ás unsupported by any evidence whatever. (3.) The amount of damages, and the confused statement of facts, showed that the referee had found against both defendants, for the acts of Delany on his sole complaint, and also for the acts of both on the joint complaint.
    III. The judgment should have been reversed as to both defendants. (1.) The’pendency of a former suit was proved as to the actual arrest and imprisonment. This action, therefore, could only be maintained for a malicious prosecution; but the referee has sustained both causes of action, and given his damages for both, as on both complaints. (2.) As words cannot constitute an assault or a battery, so a complaint before a magistrate having jurisdiction, and on which the party complained of gives bail, without the intervention of an officer or the issuance of a warrant, cannot constitute an arrest.
    IY. The referee erred in finding, as a matter of fact, that the prosecution was without probable cause, and malicious : this being an action on the complaint of Mrs. Delany. It was a question of law, and the complaint should have "been dismissed (Bulkley v. Ketteltas, 6 N. Y. [2 Seld.], 384; 2 Greenl. Ev., §§454, 455). (1.) The fact that the grand jury did not find an indictment is sufficient (2 Greenl. Ev., § 445; Bryne v. Moore, 5 Taunt., 1887; Freeman v. Arkell, 2 Barn. & Cress., 494). (2.) Probable cause does not depend upon the actual state of facts, but the reasonable belief of the prosecutor (James v. Phelps, 11 Adol. & El., 483; Delegal v. Higby, 3 Bing. N. C., 950).
    V. The judgment of the general term of the common pleas must be reversed, and a new trial ordered on a principle which is vital and fundamental: in actions for torts, where the damages are not the subject of calculation, the appellate court has no power .except to affirm or reverse the judgment (Code of Proceedure, § 330). (1.) The appeal in this case was from the whole judgment. (3.) Every person is entitled, in an action for damages, to a trial by jury. No court can take it from him. (3.) But the decision of the general term deprives the defendants of such trial. (4.) The general term is an appellate tribunal. How can it say that the plaintiff, for the arrest, &c., on Nov. 30, sustained injuries to the amount of $700, exactly, and that " for being told by justice Beewitaií, on the 31st, that he must give bail, his damages were $300 ? (5.) This court has considered this question, and no decision has ever been made that went further than to say, that, when there are items of account involved, and the court on appeal are satisfied that some item has been improperly allowed, it may give the judgment of reversal, or allow the party to abate it; otherwise a new trial (Chatteau v. Suydam, 31 AT. Y, 185; Moffett v. Sackett, 18 Id., 533 ; Boyd v. Foote, 5 Boszo., 130).
    VI. By what meter will the courts measure the damages in actions of torts, if they can be arbitrarily fixed on appeal ?—of what value is a jury?
    VII. The judgment should be reversed, and a new trial ordered before a jury.
    
      
      E. W. Dodge, for the plaintiff, respondent,
    I. The evidence is clear and uncontradicted, that the plaintiff was, on or about the 20th day of November, 1855, charged, upon the oath of Lawrence Delany, one of the defendants, with an embezzlement of the sum of fifteen dollars, which complaint was dismissed by Police Justice Beenítan : that immediately thereafter a new complaint was instituted by Ann A. Delany, the other defendant, charging the plaintiff with the same embezzlement while in her employ as clerk; that upon said charge the plaintiff was arrested while in the police court, bound over to the next court of general sessions, and required to appear ; that the defendant, Ann Delany, went before the grand jury and gave evidence in support of her accusation; but that upon her evidence alone the bill was dismissed. (1.) It will appear that a criminal process was set on foot by the defendants against the plaintiff. (2.) The fact of the dismissal of the complaint by the grand jury, is evidence that the accusation preferred was without foundation. (3.) The referee found the fact to be that there was a want of probable cause for the prosecution of the plaintiff on the criminal charge preferred; and that the latter was founded in malice. (4.) This finding upon a question of fact will be taken as conclusive upon this court.
    II. The objection taken by the defendants, that Mrs. Delany acted, in the presumption of law, under the coercion of her husband in making the criminal charge, is not well taken ; the evidence being clear in showing that her act in that behalf was voluntary. (1.) This is shown by her statements to other persons before and. after the complaint; by her evidence ; and by her own testimony, in which she disclaims any coercion exercised over her by her husband. (2.) Her complaint before the grand jury was not in the company or presence of her husband. (3.) In that case only does the presumption attach (4 Blacks. Com., 29).. (4.) In any event, this was a mere presumption, which the referee was justified, under the evidence, in finding not to exist. (5.) Having so found, this court will not disturb the report for that reason.
   Hunt, Cii. J.

The questions in this case are these :

1. Where a prosecution is maliciously instituted hy a husband and wife, the latter acting in the presence and by the direction of the husband, is she personally liable for damages in such action ?

2. Is it competent to show, in such case, for the purpose of rendering her liable, that, in fact, the wife acted of her own motive, and not siob potestate mri %

3. If competent, was there evidence of such independent action in the present case %

4. Had the general term power, when they decided the amount found by the referee to be excessive, to order a reduction of the verdict to a sum named by them, as the alternative of a new trial, or was it their duty to have ordered such new trial, to the end that another jury might ascertain the amount of damages ?

The following authorities furnish an answer to the first two questions : 1 Hale's P. C., 45 to 49 ; 4 Blacks. Com., 29 ; 2 Kent Com., 150.

The authorities are clear that, when a tort or a felony of any inferior degree is committed by the wife, in the presence and by the direction of her husband, she is not personally liable. To exempt her from liability both of these concurrent circumstances must exist—to wit: the presence and the command of her husband. An offense by his direction, but not in his presence, does not exempt her from liability, nor does his presence, if unaccompanied by his direction. His presence furnishes evidence, and affords a presumption of his direction, but is not conclusive, and the truth may be established by competent evidence.

In the present case the plaintiff furnished evidence, which was held by the referee, and by the general term, to justify the finding, that the wife acted upon her own motive, and, although in his presence, was not sub potestate mri.

Assuming this to be so, the defendants claim that they were not allowed to introduce evidence offered by them of the same character. The defendant, Lawrence Delany, "being under examination, was asked by the defendants’ counsel this question: “ By whose direction, if any one, did she make that charge ?” This was objected to by the plaintiff’s counsel, and rejected by the referee, to which the defendants excepted. The defendant might have answered, that it was by his direction, and under his authority, and this would have been evidence to discharge the wife from liability. The same question was subsequently put to the defendant, Ann Delany, without objection, and she answered that she made it "by direction of her husband. The referee, however, did not credit the witness, and found against her on this point. The exclusion of this evidence of the husband, which might have sustained that of the wife, and seriously have influenced the decision of the referee, was an error, for which the judgment must be reversed, and a new trial ordered.

I cannot concur with the action of the general term in deciding that the amount of damages found "by the referee was excessive, and assuming themselves to fix what would "be a suitable amount to have "been found "by him. Excessiveness of damages is a well-settled ground for reversing a judgment (12 Barb., 492; 19 Id., 462; 3 Sanf., 19). Where the court reach the legal conclusion, that an error in that respect has "been committed, it is their duty to reverse the judgment, equally as if fraud or corruption had been established, or incompetent evidence had been introduced. There is no rule or provision of law by which judges at the general term are authorized to fix the amount of damages properly to be recovered by a person-who has suffered from the malicious prosecution of another. Such a proceeding is in hostility to any principle of the common law, as well as to our own system of practice and pleading. If the court has erred in its decisions, or the jury has erred in its judgment, the matter must be referred to another jury, and this judgment, under better instructions, will give the correct response.

The general term say that the damages awarded are excessive; that the referee has evidently blended the damages arising from a former malicious prosecution, by Lawrence Delany alone, with those incurred in that in which his wife was a party; and order a reversal of the judgment, unless the plaintiff will reduce his damages to the sum of two hundred and fifty dollars. How can the court, by any legal process of reasoning, ascertain that just seven hundred and fifty dollars was allowed by the referee for the first malicious proceeding ? They say that that proceeding “really constituted the only serious injury sustained by the plaintiff at the hands of the defendants, either jointly or individually,” and they therefore order a deduction of seven hundred and fifty dollars. Why not order a deduction of nine hundred and fifty dollars ? That, in my judgment, would have been a more appropriate deduction, upon the case as understood by the court below. But I do not see how any judge of this court, or of the Hew York common pleas, is entitled to pass judgment upon this question. It is exclusively for the jury, or for a referee, who, by the consent of the parties, stands in place of, and exercises the same duties, as a jury.

In cases where specific items are presented on contract, and can be passed upon, rejecting or sustaining the specific charge, this court, and the court below, have been in the habit of directing a reversal or affirmance, subject to the condition that the party shall take their direction upon the questionable item. This, I have no doubt, is sound practice.

It has never, however, been applied to cases where discretion on the part of the jury was allowed, or where the damages were for a tortious act of the party, or its consequences. Such was the holding of this court in Moffit v. Sackett (18 N. Y., 522).

Judgment should be reversed, and a new trial ordered.

All the judges concurred.

Judgment reversed.  