Russell v. Dennison

California Supreme Court Jul 1, 1873 No. No.3,573Published

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Holding. The court affirmed a judgment for malicious prosecution, holding that the appellants failed to preserve objections to jury instructions and evidentiary rulings, and that the evidence sufficiently supported the verdict and damages awarded.

Issues

Whether the court erred in its instructions to the jury or evidentiary rulings absent preserved exceptions.
Whether the denial of a new trial based on newly discovered evidence was proper.
Whether the evidence was sufficient to support a verdict of malicious prosecution.
Whether the damages awarded were excessive.

Disposition. affirmed

Quotations verified verbatim against the opinion

“We cannot consider the points made upon the instructions to the jury, for the reason that the statement fails to show that any exceptions were taken to them.”

“The affidavits show that the evidence relied upon was cumulative, and that with ordinary diligence it might have been produced at the former trial.”

Synopsis

¡Record to Show Exceptions.—Where the record fails to show that exceptions were taken to the rulings of the Court during the trial, and to the charge given to the jury, objections to the same will not be considered.

New Trial on Account of Newly Discovered Evidence.—A new trial will not be granted on account of newly discovered evidence if the same was cumulative, or if with proper diligence it might have been procured on the former trial.

Sufficiency of Evidence—To justify a verdict of damages for malicious prosecution, considered.

Measure of Damages.—Where a trespass is committed from wanton or malicious motives, or a reckless disregard of the rights of others, or under circumstances of great hardship and oppression, the measure and amount of damages are matters for the jury alone. Courts will not disturb the verdict on the ground that the damages are excessive, unless the amount of damages is so disproportionate to the injury proved as to make it clear that the jury acted under the influence of passion or prejudice.

Damages bob Malicious Pbosbcutiou.—In the case stated in the opinion: held, that seven thousand dollars damages, for malicious prosecution, are not excessive.

By the Court: This is an action to recover damages for a malicious prosecution. The plaintiff recovered judgment for seven thousand dollars, from which and from an order denying their motion for a new trial the defendants have appealed.

1. We cannot consider the points made upon the instructions to the jury, for the reason that the statement fails to show that any exceptions were taken to them. The minutes of the Clerk, if they were brought into the record, would not aid the appellants in this respect.

For the same reason we cannot consider the propriety of the questions which were addressed to the witness Melinda Russell and the plaintiff, and were objected to by the defendants. After the objections were overruled, it does not appear that any exceptions were reserved.

The same may be said of the point that the proceedings of the Court were irregular, and prevented the defendants from having a fair trial, because when the jury came in for further instructions the Court read to them only its own charge, and refused the request of defendants’ counsel to [339]read all the instructions which had been given. The record shows that the Court read to the jury all the instructions for which they had asked, and besides that no objection was taken to the course pursued by the Court in this respect, and no exceptions reserved.

2. There was no error in denying the motion for a new trial on the ground of newly discovered evidence. The affidavits show that the evidence relied upon was cumulative, and that with ordinary diligence it might have been produced at the former trial.

3. It is insisted that the evidence was insufficient to justify the verdict, and that a new trial should have been granted for that reason. In the complaint it is alleged that the defendant, Dennison, caused to be made, and the defendant, Leffler, made maliciously and without probable cause, a complaint under oath before a Justice of the Peace, charging the plaintiff and one James Russell, Jr.,, with having stolen two mules of the value of one hundred dollars each, the property of the defendant, Dennison, and that upon this complaint, they maliciously and without probable cause procured the said Justice to issue a warrant for the arrest of the plaintiff upon said charge; that upon the said warrant the plaintiff was arrested in the County of Butte and taken thence to the County of San Joaquin, when upon an examination before the Justice, it appearing that there was no sufficient cause to believe him guilty of the charge, he was fully acquitted and discharged, and all further prosecution against him was abandoned by the defendants. The answer denied that the prosecution was commenced or continued maliciously, or without probable cause, and among other things alleged that before making the complaint the defendant, Dennison, 66 fully and fairly stated to his counsel, Terry & Carr, all the facts and circumstances of the case, and all the facts and circumstances tending to show who had stolen and driven, away said, mules and other property of the

Russell v. Dennison

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