Canadian Pac. Ry. Co. v. Black , 230 F. 798 ( 1916 )

LACOMBE, Circuit Judge.

1'he trial judge instructed the jury that actual malice had not been shown and the sole issues submitted to the jury were: Did plaintiff establish lack of probable cause? If so, does the jury find malice in law? What, if any, actual damages did plaintiff sustain?

We have rarely had before us a case where the testimony adduced to show probable cause was so flimsy and unpersuasive, or where the circumstances attending the prosecution of the unfortunate plaintiff were characterized by such gross breach of faith and such humiliating and unnecessary brutality.

Fortunately we are spared the trouble of incorporating any digest of the testimony in our opinion. Upon the denial of a motion to set aside the verdict Judge Mayer reviewed the whole testimony exhaustively. His opinion will be found in 218 Fed. 239. No one reading it will be surprised that the jury assessed $25,000 as compensatory damages. All we have to do is to pass upon the points presented on this writ of error. They are three in number:

[1] 1. That the court erred in leaving to the jury the question whether or not plaintiff had shown absence of probable cause. It is argued that there is no substantial controversy on the facts relevant to “probable cause,” and therefore, according to the authorities cited, the court should have determined that question itself. It is a sufficient answer to this assignment of error to say that the undisputed facts conclusively establish the proposition as a matter of law that there was no probable cause. Indeed, the trial judge himself so held when motion to dismiss was made at the end of plaintiff’s case, although subsequently he sent the question to the jury. Certainly no harm re-suited to defendant in giving it a chance to persuade the jury that there was “probable cause,” when the testimony plainly showed that there was none. _

[2] 2. That a witness, Carter, testified to a conversation with Phil-lipps, the auditor — the real instigator of the prosecution — in which the latter stated that he was not then sure that defendant’s errors were more than errors in bookkeeping, and that Black had been snippy to him, and he was going to make it as hard for him as he could. This testimony was subsequently struck out by the court, and the jury were told to disregard it. Defendant’s counsel objected to this, and insisted on his exception reserved to its admission. Hé did not, however, when it was thus stricken out, ask to have a juror withdrawn. The point need not be disposed of on any such technicality. There are cases where “such strong impression has been made upon the minds of the jury by illegal and improper testimony that its subsequent withdrawal will not remove, the effect caused by its admission, and in that case the general objections may avail on appeal or writ of error.” Throckmorton v. Holt, 180 U. S. 552, 21 Sup. Ct. 474, 45 L. Ed. 663. See, also, Turner v. American Security & Trust Co., 213 U. S. 257, 29 Sup. Ct. 420, 53 L. Ed. 788; Furst v. Second Avenue R. R. Co., 72 N. Y. 542.

But this is no such case. The only possible impression left on the jury’s mind could be as to two propositions only: First, absence of probable cause; second, amount of damages. But, without this evidence, the testimony was such that the court should have instructed the jury that on the undisputed facts there was no probable cause. On the question of damages the evidence struck out was of no importance. With the disgraceful narrative fresh in their minds of the special agent’s disregard of the promises, in reliance on which .plaintiff had voluntarily crossed from the United States into Canada — a breach of faith induced by instruction from defendant’s headquarters —and'the account of the incidents of the journey from Toronto to Winipeg, the jurors’ minds were too full of more important matters to give any attention to Phillipps’ statement that plaintiff had been snippy to him. ° .

[3, 4] 3. As to alleged errors in the charge as to measure of damages :

A. The proposition that there could be no damages found for injury to reputation without specific proof of loss is without merit, when 'one reads the narrative of the treatment to which plaintiff was subjected for 2,400 miles of travel in a public railroad coach.

B. That plaintiff’s nervous system was shocked by what took place was alleged in the complaint. The evidence objected to tended to show that he was a changed man after his sad experience. The inference that the change was due to the experience was a perfectly legitimate one for the jury to draw. He certainly would have possessed a tougher hide and blunter susceptibilities than the average man, if he had gone through that seven times heated furnace without being singed.

The judgment is affirmed.