196 A. 513 | Pa. Super. Ct. | 1937
Argued November 9, 1937. The action below was in trespass for an alleged malicious prosecution; the second trial of the case resulted in a verdict for the plaintiff in the sum of $3,500, reduced by remittitur to $2,500; and this appeal is by the defendant insurance company from the judgment entered for the latter amount.
In its assignments appellant complains of the refusal *279
of its point for binding instructions, the subsequent denial of its motion for judgment n.o.v., the refusal of a new trial, and the entering of judgment upon the verdict as reduced. Its contention that its point for binding instructions should have been affirmed, or judgment entered in its favor upon the whole record, is based upon the proposition that the trial judge should have declared as a matter of law that appellee had failed to establish want of probable cause — one of the essential ingredients of his case. As a general rule, the existence or want of probable cause "is a mixed question of law and fact, and, where the facts are in dispute, they must be submitted to the jury, who should be instructed as to what facts constitute probable cause." It is only where the facts are not in dispute and those facts, and the reasonable inferences therefrom, amount to probable cause that a trial judge may direct a verdict for a defendant: Taylor v. American International Shipbuilding Corp.,
An examination of the testimony demonstrates that the controlling facts in this case were in serious controversy and that the case was necessarily for the jury. J.H. Hubert, the appellee, is a resident of Pittsburgh. The substance of his story was that he had been employed by appellant for fifteen years to collect premiums and solicit new business on industrial insurance policies. His compensation was in the form of commissions of 20% on collections and 30% on new business. About July 1, 1932, he was desirous of quitting his employment because of ill health, but was persuaded by Harvey S. Fouse, appellant's manager of its Pittsburgh Branch, to continue his work until August 31st of that year. Appellant contended that the form of appellee's compensation was changed in July from commissions to salary, but appellee denied there had been any change in the nature of his compensation or in the *280 method by which he accounted to appellant for the moneys collected by him on its account. Appellee admitted that as of the end of August, 1932, he was indebted to appellant, upon the face of his accounts, in the sum of $159.39. He testified that as he would be entitled for a period of one year from that date to commissions on the weekly renewals of policies he had written, and as these commissions would amount approximately to $15 per month, it was agreed between Fouse and himself that he should retain the above mentioned $159.39 and that the commissions which he would otherwise have been entitled to receive in cash should be applied by appellant against this amount. Fouse flatly contradicted appellee's testimony upon this point and asserted that when appellee finally left the employ of the company he was unqualifiedly indebted to it for the balance shown by his account.
Some seven or eight months after appellee had resigned, counsel for appellant wrote him that he had been instructed by appellant to "take whatever action may be necessary and proper to collect" from him the sum shown on the books of appellant to be due, and giving appellee "an opportunity to settle" on or before April 26, 1933. In the letter appellee was requested to call on counsel to the end that counsel might explain to him "just what action" might be taken against him if he did not "care to settle this matter out of court." Appellee's counsel replied to this letter explaining that his client was ill and that appellee did not owe appellant "as much as that, if anything."
About one month later Fouse instituted criminal proceedings against appellee before an alderman, in which he was arrested and charged with embezzlement and fraudulent conversion. Appellee testified that at the hearing before the alderman Fouse offered to withdraw the prosecution if appellee would pay appellant $75. Upon appellee's refusal, he was, at the insistence of *281 appellant's representatives, placed under bail in the sum of $2,000 for his appearance at court. An indictment was returned against appellee by the grand jury but he was acquitted upon trial in the quarter sessions. Appellee stated he was under arrest for several hours before he secured bail and that he was obliged to pay $100 for a bond, and a fee of $100 to counsel for defending him. The record of appellee's acquittal was offered and received in evidence. Fouse and his attorney both denied either of them made the alleged offer to settle for $75, or for any other amount. Aside from this conflicting evidence, one of the defenses set up by appellant was that the prosecution had been instituted under the advice of counsel.
Charles P. Lewis, Esq., testified Fouse had consulted him "about the prosecution of Mr. Hubert" and he had advised him in the matter. No attempt was made to show what, if any, facts were disclosed to counsel as the basis for his advice. There was also testimony from which a jury could reasonably find that Fouse did not go to counsel for the purpose of securing advice upon the question whether appellee should be proceeded against criminally, rather than civilly, but, acting under general instructions from appellant to prosecute "any man" who "went short" for embezzlement, went to Lewis to instruct him to have appellee arrested. There was, therefore, evidence requiring submission to the jury of the question whether appellant's real purpose in commencing the prosecution was to compel appellee to pay the indebtedness alleged to be due from him. If a jury should adopt appellee's contention it would have before it prima facie evidence of a want of probable cause and of malice: MacDonald v.Schroeder,
The second assignment, based upon the refusal of a new trial, raises the serious question involved upon this appeal. We have concluded the case was for the jury, but appellant was entitled to have it submitted under proper instructions. It is contended that the learned trial judge committed an inadvertent, but basic and fundamental, error by instructing the jury that if it found "proof of want of probable cause" it could "and must come to the conclusion there was malice." The definitions given the jury of "probable cause" and of legal "malice" are unobjectionable, but at two places in the charge the trial judge, in our opinion, committed errors so basic and fundamental as to bring the matter before us under appellant's general exception to the charge. At one place the trial judge said: "If you find there was want of probable cause you may infer from that the wrongful act, and determine whether or not it was malicious. You may decide it was not. But if you find there is proof of want of probable cause you can and must come to the conclusion there was malice." (Italics supplied)
These instructions were not only contradictory and confusing; the final statement was erroneous. In another portion of the charge the same error appears in the instruction that if the jury was convinced appellant "had no probable cause" for instituting the prosecution the verdict should be for the appellee if the jury found he had been injured. The entire sentence reads: "If you are convinced, of course, by the weight of the evidence that the defendant had no probable cause, your verdict should be for the plaintiff, if you find he has been hurt." (Italics supplied)
It has been repeatedly held by our Supreme Court and by this court that in order to sustain an action *283
for malicious prosecution the burden of proof is on the plaintiff to establish, by circumstances or otherwise, three elements: (a) termination in the plaintiff's favor of the criminal proceeding on which the prosecution is based, (b) want of probable cause, and (c) malice: Altman v. Standard Refrig. Co., Inc.,
The trial judge correctly charged the jury that it could not infer want of probable cause from proof of the mere fact that appellee had been acquitted in the *284 criminal case, but erred in stating to them that if they found, from the weight of all the testimony, the second element — want of probable cause — they must conclude that the third element — malice — had been established, and their verdict should be for the appellee if they found "he has been hurt."
Under all the decisions, want of probable cause and malice are separate and distinct, but concurring, essentials of a charge of malicious prosecution. The most that can be said of their relation to each other is that malice may be inferred from the want of probable cause, (Keener v. Jeffries,
Perhaps the most succinct statement of the rule was made by Mr. Justice STERRETT in McClafferty v. Philp,
In Gilliford v. Windel,
The instructions of the trial judge in this case to the jury that if they found want of probable cause they must conclude there was malice and that appellee was entitled to recover by showing only the favorable termination of the criminal proceeding and want of probable cause were in conflict with the established principles to which we have referred and require that the case be retried. Their effect was to permit a recovery upon findings of only two of the three essential elements of appellee's case.
Appellant also urges that the verdict is "excessive under the evidence." Under the conclusions we have reached upon the other features of the case it is unnecessary to consider this contention. The second assignment, charging error in denying appellant's motion for a new trial, is sustained.
Judgment reversed with a venire.