56 A.2d 284 | Pa. Super. Ct. | 1947
Argued October 10, 1947. This is an appeal by the defendant from a verdict and judgment against her in an action for malicious prosecution. As a new trial must be granted due to fundamental error in the charge of the court, the only other assignment requiring consideration pertains to the refusal of defendant's motion for judgment n.o.v.
Viewed in a light most favorable to plaintiff, the evidence showed the following facts: Defendant, who is the aunt of plaintiff's wife, lived in a house owned by her at 24 Factory Street, Slatington, Pennsylvania. Plaintiff, formerly a resident of the state of California, had been living with his sister in the village of Emerald, near Slatington. By mutual agreement plaintiff went to live in defendant's house on December 7, 1945. The next day Mrs. MacConochie drove with friends to Florida *126 where she remained until her return on March 16, 1946.
Plaintiff was to take care of the house and use its facilities during defendant's absence; nothing was said about the length of plaintiff's stay. It was understood, however, that plaintiff's wife, their daughter and the daughter's two children, who returned from California on December 16, 1945, would occupy defendant's home with the plaintiff. Plaintiff's son later joined the family, bringing with him a large Doberman dog.
A few weeks after defendant's return from Florida friction developed between plaintiff's family and defendant. Defendant, a woman then 77 years old, took her cooking utensils, packed them in boxes and removed them to the cellar. She locked part of the house and tried generally to make life miserable for plaintiff's family so that they would leave.
On May 6, 1946, defendant had an attorney write a letter to plaintiff's wife in which it was requested that the Jones family vacate within thirty days. Plaintiff was not able to obtain other quarters at once. Defendant then asked advice from three justices of the peace as to means of evicting the plaintiff and his family. One of these advised defendant on May 15, 1946, to "Watch your P's and Q's" and lock the door when the Jones family were all absent from the house. Defendant followed this advice and locked the door at eleven o'clock in the morning on May 17, 1946. Plaintiff returned with his daughter at three o'clock that afternoon and asked defendant to open the door. Defendant refused and proceeded to fasten the windows of the bedroom used by the daughter, whereupon plaintiff forced open the door and entered the house. He and his family continued to reside in defendant's house and were living there at the time of the trial.
Defendant drove to the same justice of the peace who had advised her to bar the door and swore out two warrants, one charging plaintiff with forcible entry and *127 detainer, the other charging assault and battery, the latter charge growing out of a dispute over the use of an ironing board in one of the bedrooms a few days before. Plaintiff was arrested the following morning, May 18, 1946, at seven o'clock, by a constable who permitted plaintiff to dress and then took him before the justice at the latter's home, where plaintiff remained for three quarters of an hour. The justice dismissed the assault and battery charge as only a scuffle, but he held defendant on the forcible entry charge and committed him to jail. The record of the justice did not show that bail had been set in any amount. Bail was finally posted in Allentown, and plaintiff was released after three hours' imprisonment. The grand jury of Lehigh County ignored the bill charging forcible entry and detainer.
Plaintiff instituted the present action for malicious prosecution on July 12, 1946. The case was tried October 24, 1946. The trial resulted in a verdict for plaintiff of $1,000 compensatory damages, and $4,000 punitive damages. The latter was reduced by remittitur to $500. Defendant's motions for judgment n.o.v. and for new trial were refused; judgment was entered on the verdict for $1,500.
Appellant's motion for judgment n.o.v. was properly refused. There was no dispute as to the facts regarding the prosecution for forcible entry brought by appellant. The admitted facts on this criminal charge do not show probable cause, as a matter of law. On the contrary, they show want of probable cause, as a matter of law. Advice of an attorney sought in good faith and upon full disclosure is a defense. Stritmatter v. Nese et al.,
The charge of assault and battery involved facts which were in dispute, and the court could not, as a matter *128
of law, rule that probable cause existed for this prosecution. This Court said in Hubert v. Alta Life Insurance Co.,
Appellant's fourth assignment of error relating to the charge of the court must be sustained. The error was fundamental. The trial judge charged, inter alia, as follows: "Where a charge is ignored, that makes out a prima facie case, that is, it makes out a case at first blush on behalf of the plaintiff, showing that there was a lack of probable cause, and then the burden shifts to the defendant to show that there was probable cause. Where you find that an action was brought without probable cause, you would have the right to infer, if you will, from the bringing of an action without probable cause, that it was brought with malice, out of malice or of ill will, and so it becomes necessary for you to determine in this case whether or not the defendant has carried her burden by the weight or preponderance of the evidence; the cases having been dismissed, whether or not she has shown to you that these actions were not brought out of malice, and that they were brought with probable or reasonable cause." On this point the learned trial judge fell into the same error in his charge as was committed by the trial judge in the case ofGroda v. American Stores Co.,
As recently as Simpson v. Montgomery Ward Co.,
The charge was also fundamentally erroneous in that the trial judge left the question of probable cause to the jury on the law and on the facts. As to the forcible entry prosecution, the trial judge charged: "It will be for you to determine, from the facts in the case [which were not in dispute], whether or not Mrs. MacConochie, at the time that she swore out the information, honestly believed that she had a legal right to the action which she took; whether or not an ordinarily prudent person under such circumstances would have considered that he had probable cause to bring the action that was brought, whether she acted out of an outraged sense of the propriety of someone breaking down the door of her *130 home, or whether or not it was the scheme on her part to incarcerate Ralph Jones, so that she would obtain possession of the house." Again, the trial judge submitted probable cause to the jury on the law and on the facts, as to both prosecutions, as follows: "If you find that this action was not brought out of malice, if it was brought with probable and reasonable cause, then that is the end of the case, then while it is unfortunate that Mr. Jones was arrested, he would still not have any right to damages at your hands, and in that case you would bring in a verdict for the defendant. If, on the other hand, you find that these prosecutions were brought out of malice, were brought without reasonable and probable cause, then, as I said to you in the first place, a person who has been so arrested is entitled to recover damages."
Mr. Chief Justice MAXEY made it clear in Simpson v. MontgomeryWard Co., supra,
We cannot agree with plaintiff's argument that, since the jury found for him, the trial judge's failure to instruct the jury that no probable cause existed for the forcible entry prosecution is harmless error. The action in this case was based on both criminal charges: (1) Forcible entry and detainer, and (2) assault and battery. The facts were disputed as to the latter and it was the court's duty to submit the factual question to the jury. Probable cause existed for the assault and battery charge only if defendant (appellant) honestly and reasonably believed that intentional violence, in some degree, had been inflicted upon her by plaintiff. Plaintiff's further argument to the effect that there must be lack of malice with probable cause is without authoritative support. In this connection it is sufficient to point out that without malice want of probable cause is wholly insufficient to sustain a charge of malicious prosecution(Simpson v. Montgomery Ward Co., supra,
In returning the record for a new trial in this type of case, which admittedly presents difficulties to even the most careful trial judge, we direct the attention of the court below to the advice given by Mr. Chief Justice MAXEY in Simpson v. MontgomeryWard Co., supra,
The judgment is reversed, and a new trial is awarded.