Malone v. Murphy , 2 Kan. 250 ( 1864 )

By the Court,

Crozieb, C. J.

The three points upon which the plaintiff in error relies for a reversal of the judgment of the Court below, are:—

1st. The Mayor of the City of Leavenworth could not lawfully exercise judicial functions under the laws of the State.

2nd. The District Court erred in charging the jury that they might give vindictive or punitive damages.

3d. The District Court erred in charging the jury that the law implied malice from want of probable cause.

By Article III, Sec. 1 of the constitution the judicial power of the State is “ vested in a Supreme Court, District Courts, Probate Courts, Justices of the Peace, and such other Courts inferior to the Supreme Court as may be provided by law.”

Article III of “An Act to incorporate cities of the State of Nansas” (Compiled Laws, page 388,) defines the "duties of Mayor, provides that he “ shall have original jurisdiction of all offenses against the laws of this State; committed within the limits of the city, and by virtue of his office shall be a Justice of the Pea'ce.” It is objected that this provision is not authorized by the section of the Constitution above quoted, because it attempts to confer judicial powers without in terms creating a Court. It will be discovered upon an examination .of the whole '-article of the Statute referred to, in connection with the provisions of the Code of Criminal Proceedure upon the subject “ of the arrest and examination of offenders ” (Compiled haws, page 212, See, 28, el seq.) that the Mayor- may use all the machinery necessary to hold an offender to bail that: may be employed by a Justice of the Peace. The provisions of. the Code of Criminal Proceedure apply in terms to both. The Mayor is authorized to administer oaths, hear complaints, issue process, subpoena witnesses, take testimony, and hold to bail; and yet we are asked to;say that such a tribunal is not a Court because the Act of the- Legislature does not in terms style it a .Court! We think we cannot adopt such a construction without sacrificing- substance to technicality. When the Mayor is sitting for the examination of an . offender against the'laws of the State, the tribunal is a Court. In the ease at bar the Mayor had jurisdiction of the subject matter, had power to proceed in it, and the proceeding was a prosecution.

- The charge to the jury upon the subject of the damages, is complained of. There has been much discussion in the Courts, and among elementary writers upon -the subject of vindictive damages, or “ smart money ” as they are sometimes styled. Several decisions sustain the rule as laid down by the Court below; and Mr. Sedgwick, ■ in, his admirable work upon the measure of damages, takes the same view. Mr. Qreenleaf thinks the damages should be limited to compensation only. Logically we think he is right, and were the question an open one, we should be inclined to adopt his view of the subject. But it can make no difference practically which rule is adopted in the trial, of a cause. ' If the jury shall be confined to compensation-for the injury sustained, they will be authorized to estimate injury to the feelings, mental anguish and tarnished honor; and in assessing damages for these things their own judgment can be their only guide. No standard can be fixed— no rule of compensation established. All must necessarily be left to the discretion of the jury, subject only to the power of the Court to determine whether their estimate, if apparently excessive, has been influenced by passion or prejudice. So under the.other rule, their discretion, subject to the same power of revision must dictate.the amount of the verdict.

"We would rather adopt the compensatory theory, believing it to be more nearly logically correct; but the other having been long established, recognized and acted upon by enlightened Courts, we are not disposed to change it where a change would make no difference in results. In giving this rule to juries in cases, the details and circumstances of which are calculated to inflame their passions, the Court should be very careful to indulge in no loose expressions which would indicate that the feelings of the jury were in any manner to influence their action.

To sustain the action for malicious prosecution, two things are essential,—malice and want of probable cause. Malice is not of itself sufficient, neither is want of probable cause. Both must concur. Affirmative proof of malice is as necessary as affirmative proof of the absence of probable cause. Both are issues to be submitted to the jury, and both must be found from the testimony, as facts, by the jury, to sustain a verdict for the plaintiff’.

How then can they be said to find from the testimony that there was malice if the Court shall say to them that the evidence which shall convince them of the absence of probable cause must convince them of the existence of malice 2 The evidence might clearly show that the defendant acted in the best of faith, but upon an entirely innocent mistake of fact. The jury might be fully satisfied of the entire absence of probable cause in such a case; yet the rule as given the jury by the Court below would compel them to find that the prosecution was malicious. The real effect of the rule would be that the jury would find one of the essential facts, and the Court Would find the other, and compel the jury to adopt its finding.

Such we do not believe the law to be. The jury may consider the absence of probable cause as a circumstance tending to show malice. It may be in individual cases a circumstance sufficient to satisfy them of malice. They are to be the sole judges of that. They are not bound by the law to be so satisfied. They may infer malice from want of probable cause, but they are not bound so to infer it.

Therefore we think the Coitrt erred in charging the jury that mffiice Was implied from want of probable cause, and the judgment will be reversed.

All the justices concurring.