173 A. 419 | Pa. | 1934
Argued May 24, 1934. On Saturday night, November 24, 1928, a robbery of $875 in cash and of $223 in checks was perpetrated on the agents of the Hummelstown store of the American Stores Company. It was customary to deposit Saturday's receipts, at a late hour, with a bank across the street. Previous to this robbery, the men who were assigned the duty of taking the deposit to the bank, left through the front door, but, in view of a rumor that the store was to be robbed, Groda, employed as meat manager by the American Stores Company, and Mr. Leedy, another employee, who were selected to take that day's deposit to the bank, departed from the store by the rear door so as to make it appear that they had finished work and were going home. As they attempted to get into their car, they were surrounded by armed men who commanded them to drive into the country. They did so and when several miles away, the American Stores' money was taken from them. They made their way back to town and Groda notified the state police of the robbery, *486 between 3:30 and 4 o'clock Sunday morning. Groda also reported the robbery to Brensinger, general superintendent of the American Stores Company for that district. Groda and Leedy were both questioned by the state police on Sunday night and for about six or seven hours Monday. On Tuesday they were taken by the state police to the district attorney's office in Harrisburg, where, after questioning, information was made by Elmer L. Ludwig, manager of the Hummelstown store of the defendant company, charging both Groda and Leedy with the larceny of the above sum of money of the American Stores Company. There were certain circumstances which seemed to cast some suspicion on them, such as the one that none of their own week's salary, just received, had been taken from them in the robbery and the fact that Groda had failed to keep an appointment that he had with the state police when they were investigating this crime. Groda and Leedy were arrested on warrants and in default of bail Groda was, on November 27, 1928, committed to the Dauphin County Jail, where he was confined four days until he was released on bail. When the case against the plaintiff was called before the alderman, it was dismissed for lack of evidence and the costs put upon the County of Dauphin. Later the perpetrators of this robbery were apprehended and it was found that Groda and Leedy were entirely innocent.
Groda sued the American Stores Company in trespass, alleging that Ludwig in making the criminal information against him "acted with the authority" of the defendant and that the "arrest was made at the instance of the defendant, by its agent, servant, or employee, maliciously and without reasonable and probable cause." Defendant denied that Ludwig acted as its agent or within the scope of his authority, express or implied.
The case was tried and a verdict returned in favor of the plaintiff in the sum of $3,500. Defendant's motions for judgment n. o. v. and for a new trial were both overruled. An appeal was taken. *487
The trial judge submitted to the jury the question of the agency of Ludwig, the manager of the Hummelstown store, and of Brensinger, the district agent of the defendant company, to institute this criminal prosecution.
The tenth assignment of error is based on the court's overruling defendant's objection to the offer to prove that before making the information against Groda, Ludwig "consulted the highest authority of the American Stores Company within the Harrisburg District, namely Joseph Brensinger, the general superintendent of the American Stores Company . . . . . . and that Mr. Brensinger told him to go ahead and make the informations, that they would stand back of him."
The twelfth assignment of error is based on the court's overruling defendant's objection to the offer to prove by Ludwig "that before he made these informations against plaintiffs, he consulted Mr. Brensinger," and that the latter "replied substantially, 'Go ahead and do it, it is all right, we will stand back of you.' "
The seventeenth and eighteenth assignments of error were based on the charge of the court as to the company's remaining silent and acquiescent "for a length of time with full knowledge of the facts" as to the criminal information against Groda.
The twenty-first assignment is based on the court's affirming with qualifications plaintiff's eleventh point for charge, being as follows: "If the jury find from the evidence that the general superintendent, Brensinger, reported to his superiors in Philadelphia, that the manager of the Hummelstown store had made an information against the plaintiffs, and the American Stores Company took no action pursuant to this information to disavow the action of the manager of its store, this failure to act amounted to a ratification of the manager's action."
The twenty-second assignment of error is based on the court's refusing defendant's ninth point, reading as follows: "There is no evidence in this case to show that the *488 defendant company ratified the acts of Ludwig in bringing prosecutions against the plaintiffs."
All these assignments of error are overruled. There was sufficient evidence to go to the jury on the question of whether or not the act of Ludwig in making these informations was the act of the defendant company. This court, in an opinion by Mr. Justice SCHAFFER in Farneth v. Commercial Credit Co.,
The twenty-third assignment of error is based on the charge of the court to the jury as follows: "The burden is on the plaintiff to prove, first, that the prosecutor had no probable cause upon which to found the prosecution; second, that he was actuated by malice. If the plaintiff's evidence shows probable cause, that would be the end of the case. Where the defendant has been discharged in a criminal case, and that is the evidence here, the defendants in the criminal cases were discharged, then the burden of proof shifts from the plaintiffs to the defendant; the defendant is then bound to make out a case of probable cause, unless the plaintiff's evidence has already made it out. If the defendant shows probable cause, and the plaintiff's evidence has not shown it, that is sufficient for the defendant's protection."
In McCarthy v. De Armit,
It has sometimes been held in this State in actions for malicious prosecution that proof that criminal proceedings against the person who was the defendant in the criminal case terminated in his favor either by an acquittal or by the discharge of the examining magistrate, was in itself evidence of the want of probable cause for the prosecution, and from it the existence of malice could be inferred and the burden of proof was then cast upon the civil defendant to prove the contemporaneous existence of probable cause for the prosecution he initiated. Such cases as have or seem to have supported this doctrine can no longer be considered as expressing the law of this State and they are now overruled to the extent that they support the doctrine herein repudiated. Neither an acquittal of the defendant in a criminal prosecution, nor the ignoring of the bill against him by the grand jury, nor his discharge by the examining magistrate, constitutes proof of want of probable cause, or shifts the burden of proof to the defendant in the civil action. (See *490
the opinion this day filed in the case of Altman v. Standard Refrigerator Co.,
The mere fact that at the time of the preliminary hearing the evidence in the criminal case was not sufficient to convince the magistrate that the prosecutor had made out a prima facie case is not relevant to the issue: Did the person who swore out the criminal information act upon reasonable and probable cause when he did so? It might well be that the circumstances as they appeared at the time the information was lodged were sufficient to cause a prudent man to believe the accused guilty of the crime charged and yet by the time of the preliminary hearing the circumstances might have so changed as to cause the magistrate to believe and hold that the prosecutor had failed to make out a case.
In Lewis v. Goldman,
In Anderson v. Friend,
In Reiss v. Levy,
In the case of Brady v. Stiltner,
In 24 A.L.R. 280, appears this statement: "An abandonment of the prosecution by the complaining witness, a discontinuance at the instance of the prosecuting attorney, a dismissal by the magistrate or court without a hearing of all the evidence, and other similar terminations of a criminal proceeding whereon an action of malicious prosecution has been based have been variously spoken of as constituting no evidence of want of probable cause, raising no presumption thereof, establishing no prima facie case of lack of probable cause, being insufficient to prove want of probable cause, etc. The weight of authority is in this direction." Cases are then cited from the following jurisdictions: United States, Georgia, Illinois, Indiana, Kentucky, Minnesota, Nebraska, *493 New Jersey, New York, Ohio, Rhode Island, South Carolina, Tennessee, Utah, Wyoming, England and Canada. On this question, reason abundantly supports the weight of authority. The twenty-third assignment of error is sustained.
The fifteenth assignment of error is based upon the court's sustaining plaintiff's objection to the defendant's offer to prove that "previous to the bringing of the information in this case, the witness, a member of the state police, in company with another member of the state police, and the plaintiff, Groda, went to the office of . . . . . . the district attorney of Dauphin County, and there, in the presence of the district attorney, questioned Mr. Groda for several hours, at the conclusion of which the district attorney directed the state police officers to take Mr. Groda into custody and have an information made against him. This for the purpose of showing that the prosecution was brought upon the advice of the prosecuting officer of the county, and, therefore, was brought upon probable cause, and without malice upon the part of the informant." As to this, the court said in the opinion refusing a new trial: "The matter referred to was not offered, neither was the communication to the district attorney, nor what the district attorney advised, or that his advice was communicated to the prosecutor, Ludwig. This we think was necessary to render the testimony offered admissible." In Smith v. Walter,
There is some evidence in this case that the prosecution was advised by the members of the state constabulary. This is of no avail as a defense. In Davis v. Morrison,
No additional discussion of the questions presented to us by this record is required further than to say that the facts and circumstances attendant upon the arrest complained *495 of in this action indicate that plaintiff made out a case of want of probable cause sufficiently strong, prima facie, to entitle him to have the issue passed on by the jury. One who initiates a criminal prosecution ought to have a well-founded belief of the guilt of the party prosecuted. Whether or not there were substantial indications of defendant's guilt justifying a reasonable belief of it on the part of the prosecutor in the present case, is, as the record stands, a jury question.
The judgment is reversed with a venire.