Norcross v. Otis Bros.

Opinion by

Mr. Chief Justice Paxson,

We do not understand it to be disputed that the defendant corporation had a claim against Norcross Brothers, growing out of the construction of the elevators of the court house, in the city of Pittsburgh. Whether it was a valid claim, is not material to the present inquiry. That there was such a claim appears distinctly by the agreement referred to as “ Exhibit C,” and bearing date the 23d day of November, 1887.

It further appears that the county of Allegheny was indebted to Norcross Brothers in a sum of money which was due on account of the erection and construction of'the said court house. The plaintiffs were nonresidents of the state, and they claim that the defendant gave notice to the county not to pay them the money that was admittedly due them. What the precise terms of this notice were does not appear. It was not in writing, and we have only oral evidence of its character.. In pursuance of it, however, the commissioners of the county, acting under the advice of counsel, refused to pay the balance, about $6,800, whereupon Norcross Brothers sued the county of Allegheny and recovered the amount.

This suit is brought to recover damages alleged to have been sustained by Norcross Brothers in consequence of the alleged wrongful notice given as above stated. The jury returned a verdict for the plaintiffs in the sum of $577, upon which verdict judgment was entered in the court below.

The plaintiffs’ statement of their cause of action alleges that the notice referred to was given maliciously, vexatiously and unjustly.

The only specification with which we will concern ourselves is the tenth, in which it is averred that the learned court erred in not affirming defendant’s point. The point was in these words: “ That under all the evidence the plaintiff is not entitled to recover.”

This specification presents the broad question, whether the plaintiffs have any cause of action.

While it may be true that an action will lie for a malicious abuse of civil process, yet there must be falsehood in the demand, want of probable cause, malice in the defendant, and an actual arrest of the person, or a seizure of property. Whatever may have been the rule of the common law in England prior to the time of Henry hi, at the present day, and according to the law as it stands now, the bringing of an ordinary action, however maliciously, and however great the want of probable cause, will not support a subsequent action for malicious prosecution: Pollock on Torts, 206. And a mere civil suit, however malicious or unfounded, cannot be made the ground for an action of damages. In Muldoon v. Rickey, 103 Pa. 110, it was held, that no action lies to recover damages for the prosecution of a civil suit, however unfounded, where there has been no actual interference with either the person pr property of ihe defendant. The case cited was an action of ejectment, in which the declaration averred that it had been instituted maliciously and without probable cause, and that in consequence thereof the plaintiff was injured in circumstances, and was hindered and prevented from using the properties in controversy, to borrow money for his business, by means whereof he was damaged, etc. This court held, reversing the court below, that the plaintiff could not recover.

In Kramer v. Stock, 10 Watts, 115, it was held that to sustain an action on the case for malicious prosecution, it was necessary that the party should have committed an illegal act from which positive or implied damage ensued; but that, to bring an action, though there was no good ground for it, was not such an illegal act. On the other hand, where one abuses legal process, as by maliciously holding one to bail, or wantonly levies an execution for a larger sum than is due, or after the payment of the debt, an action would lie against him, for these are illegal acts, and damage is thereby sustained.

In Mayer v. Walter, 64 Pa. 283, it was held that a mere suit, however malicious and unfounded, cannot be the ground of an action for damages if the defendant or his goods be not seized. “ If,” said Mr. Justice Sharswood in delivering the opinion of the court, “ the person be not arrested or his property seized, it is unimportant how futile and unfounded the action may be, as the plaintiff, in consideration of law, is punished by the payment of costs.”

If the law'were not so, there would be no end of litigation. If the plaintiff, in an action of this kind, should fail to recover, the defendant in turn would bring a suit against him on the ground that the former suit was malicious, and so long as there was no recovery for the plaintiff, the parties could keep on suing each other until the end of time.

In this case there was neither the use nor the abuse of legal process. There was nothing but the giving of a notice. The notice had no legal effect whatever. It had not the effect of an attachment to tie up the fund, and had the money been attached by legal proceedings, it would be difficult to see how the plaintiff in the attachment could be mulcted in damages because of the failure of his attachment. That the action did not operate as a legal restraint upon the fund in question is shown by the fact that Norcross Brothers immediately brought suit against the county and recovered. Their loss was the delay of payment which was compensated by interest.

It is to be noticed that in the ingenious and able argument of the learned counsel for the appellee, but a single case is cited which it is even alleged sustains his contention. That was the case of Patterson v. The Marine National Bank, 130 Pa. 432, where punitive damages were allowed by reason of the refusal of the bank to honor a check of a depositor upon notice of a third person that he was the owner of the fund. The case cited would have had more application if the suit had . been against the third person who gave the notice instead of the bank which refused to honor the check.

We are quite sure that if there was a case in the books which even seemingly sustains the contention of the appellees the industry of their learned counsel would have discovered it. In Potts v. Imlay, 1 Southard, 330, Chief Justice Kirkpatrick alleged that the books for four hundred years back had been searched to find an instance where an action on the case for the malicious prosecution of a civil suit, like the one there trying, had been successfully maintained, and that it was conceded by the counsel for the plaintiff that no such case had been found. We understand, therefore, why no case has been cited in the present instance.

We are of opinion that the plaintiffs below had no cause of action, and the defendant’s point should have been affirmed.

Judgment reversed.

Mr. Justice Mitchblx, dissented.