55 Pa. Super. 164 | Pa. Super. Ct. | 1913
Opinion by
This was an action to recover damages for an alleged malicious prosecution. In such cases, if it be made to appear there was probable cause for beginning the prosecution complained of, a complete defense is made out. The existence or nonexistence of probable cause is a legal conclusion to be drawn from established facts. If the facts necessary to support such conclusion are admitted or established by uncontradicted evidence, it becomes the duty of the court to declare, as matter of law, that such defense has or has not been made out.
At the close of the evidence the learned trial judge, being of opinion there was a material question of fact to be determined by a jury, submitted the case, and a verdict for the plaintiff followed. Later, on a consideration of the whole of the evidence, following a motion for judgment non obstante veredicto, he reached the conclusion that a verdict for the defendant should have been directed and accordingly granted the motion and entered such judgment, filing therewith an opinion fully setting forth the reasons on which his conclusion rested.
There can be no doubt, from the pleadings and all of the evidence, that the plaintiff was an employee in the service of the defendant, and that by virtue of such employment he received into his possession money and other property of his employer. If he willfully appropriated or converted such money or property to his own use, he was guilty of the offense with which he after-
In January, 1909, the books of the company showed the plaintiff to be short in his accounts in the sum of $132. He raised no question as to the accuracy of the books and made no denial of the shortage of which he was accused, but obtained the sum demanded and paid it to the defendant in satisfaction of that shortage. There is some conflict in the evidence as to the reason why or condition on which he was permitted to retain his place. He continued his service until in December of the same year, when he was called to the office of his superior and told that he was again short- in his accounts. He at once admitted that he knew he was short to the extent of $20.00 or $30.00. When told the books showed his shortage exceeded $100, he again made no question as to their correctness but remarked he did not see how it could be so much. An information was made against him for embezzlement. He was arrested and taken before a magistrate who testifies that the present plaintiff, then defendant, said to him, the magistrate, he was short in his accounts with .this firm and thought he might as well plead guilty. It is true this declaration had not yet been made at the time the information was sworn to and therefore could not have been within the knowledge of the prosecutor. Made as •it was, however, so closely following his admission in the office of the defendant, it is significant as showing his estimate of the weight of the accusing evidence and the reason why he had attempted no explanation of the shortage.
We have then the defendant’s knowledge of his previous default; we have the fact that the books of
Judgment affirmed.