Wheeler v. Hanson

37 N.E. 382, 161 Mass. 370, 1894 Mass. LEXIS 198

• Court: Massachusetts Supreme Judicial Court
• Decided: May 18, 1894
• Status: Published

Opinion

Morton, J.

The first objection by' the defendant to the admission of evidence did not result in an exception, and need not, therefore, be considered.

We discover no error in regard to the admission of evidence to show that the prosecution had terminated. The substitution of the letter P for the letter F as the initial of the plaintiff’s middle name was wholly a clerical mistake, and the plaintiff was properly allowed to show that fact and that he was the person meant. Wood v. Le Baron, 8 Cush. 471. In an action against the plaintiff’s sureties on his recognizance, it. could have been shown that the mistake in his name was a purely clerical error. Wood v. Le Baron, ubi supra. The principle that a record cannot be impeached or contradicted has no application to a case like the present, where it is evident from one part of the proceedings that a clerical mistake has occurred in another part of the proceedings. Eastman v. Perkins, 10 Cush. 249. Commonwealth v. McMahon, 133 Mass. 394. Commonwealth v. Brigham, 147 Mass. 414, 416.

The evidence as to what the plaintiff paid the sureties to go upon his bond, and what he paid for counsel fees, was properly admitted. If it was objected to on the ground that there was no allegation of special damage in the declaration, that objection should have been called to the attention of the court at the trial, and was not.

The expenses to which the plaintiff was put in procuring sureties and in employing counsel were the direct and necessary result of the defendant’s act, and constituted a part of the damages to which the plaintiff was subjected in consequence thereof. Savile v. Roberts, 1 Ld. Raym. 374. Foxall v. Barnett, 2 El. & Bl. 928. Sheldon v. Carpenter, 4 Comst. 578. Marshall v. Betner, 17 Ala. 832. Lawrence v. Hagerman, 56 Ill. 68, 75. Magmer v. Renk, 65 Wis. 364. Walker v. Pittman, 108 Ind. 341. Blunk v. Atchison, Topeka, & Santa Fe Railroad, 38 Fed. Rep. 311, 317. 2 Greenl. Ev. § 456. It has been held more than once in this State, that when the plaintiff has, in consequence of the wrongful conduct of the defendant, been put to expense in the employment of counsel, the amount so paid is an element of damage in an action against the defendant arising out of such wrongful conduct. Pond v. Harris, 113 Mass. 114, 121. New Haven & Northampton Co. v. Hayden, 117 Mass. 433. Westfield v. Mayo, 122 Mass. 100. Faneuil Hall Ins. Co. v. Liverpool, London, & Globe Ins. Co. 153 Mass. 63, 72. See also Boston & Albany Railroad v. Charlton, ante, 32, and Conant v. Burnham, 133 Mass. 503, 505.

We also think that it was competent for the plaintiff to show the nature of his business and the tools required in it, the difficulty which he had in getting employment, the trouble to which he was subjected by taking away the property on which he relied to obtain other tools, the amount of his earnings, the injury to his feelings and reputation, and the indignity which he suffered. Hunter v. Farren, 127 Mass. 481. Morgan v. Curley, 142 Mass. 107. French v. Connecticut River Lumber Co. 145 Mass. 261. Leach v. Wilbur, 9 Allen, 212. Tompson v. Mussey, 3 Greenl. 305. Ehrgott v. Mayor, &c. of New York, 96 N. Y. 264. Sedgwick, Damages, (8th ed.) § 133.

The natural and necessary results of the charge which the defendant made against the plaintiff, and of his action thereon, would be, as they became known, to render it more difficult for him to obtain employment, and to impair his credit and to affect his reputation, besides injuring his feelings and subjecting him to indignity.

The prosecution instituted by the defendant against the plaintiff was for the embezzlement of goods from the store. Evidence that the land taken by the plaintiff in exchange for the store was taken at a price greatly above its real value would have no tendency to show that the defendant had probable cause for believing that the plaintiff had embezzled the goods, and was not admissible in mitigation of damages. Bliss v. Franklin, 13 Allen, 244. It was therefore properly excluded.

There can be but one assessment of damages for the cause of action on which this suit is based, and all the damages, those accruing after as well as before the bringing of the action, must be included in it. Evidence as to damages after the date of the writ was therefore rightly admitted. Fay v. Guynon, 131 Mass. 31. The case is not like that of a continuing trespass, for instance, where new causes of action arise from day to day, or a case in which there may be successive breaches of the same contract.

The court properly refused to allow the defendant to argue to the jury as to the effect of the motion to dismiss, filed by the plaintiff in the Municipal Court. The plaintiff had a right to make the motion, and it cannot be considered in any sense as an admission of guilt on his part, or as showing that the defendant had probable cause to believe him guilty.

The result is, that the exceptions must be overruled, and it is

So ordered.