7 N.J. Misc. 561 | N.J. | 1929
The plaintiff: was an employe of the defendant at the latter’s store, in Paterson, where ladies’ clothing of all kinds apparently was sold. In March, 1927, the defendant discovered that a lady’s sport cloth coat, valued at $39.50, had disappeared. An investigation was thereupon made, and the plaintiff, upon being questioned, said that he had sold the coat and had turned in the purchase-money to the cashier. This the cashier denied. The defendant then called upon the police authorities in Paterson and told them that the coat was missing. They made an investigation, and then one of the members of the police force took the plaintiff to the police station, as he said, for examination and interrogation, although he did not formally arrest him. The defendant was
It is argued on behalf of the defendant' that a new trial should be directed, for the reason that the court, in dealing with the question of defendant’s liability, erroneously charged the jury that the absence of probable cause necessarily infers the existence of malice in the defendant’s conduct. This statement is taken verbatim from the opinion of Mr. Justice Minturn in the case of Sunderbrand v. Schills, 82 N. J. L. 102. This rule of law declared by our court of last resort was binding not only upon the trial court in the present case, but is also binding upon this court in determining the soundness of the defendant’s contention. We deem it proper, however, to point out that there is no suggestion in the opinion referred to that this necessary inference cannot be overcome by proper proof controverting its existence; and that it is entirely settled by our decisions that this may be done.
It is further contended that the trial court erroneously admitted, over objection, certain testimony given by one Herman, a witness called by the plaintiff. The witness was permitted to testify that on a visit made by him to “The Credit Clearing House,” in Few York, he saw among the files of that corporation a letter written upou the defendant’s business paper, and signed by the defendant; and that he saw the following sentence therein: “We do not recommend him for credit.” The purpose of this testimony manifestly was to induce the jury to believe that the letter referred to the plaintiff, and that the defendant, Michaels, had written it to The
Moreover, the testimony as to the contents of the letter, even if it showed that the plaintiff was the subject thereof, was secondary evidence, and was not competent unless a satisfactory explanation of the failure to produce the letter itself was first given, and no such explanation appears in the state of the case submitted to us.
Eor the reason last discussed, the rule to show cause will be made absolute and a retrial ordered.