250 F. 685 | 3rd Cir. | 1918
“The existence of a want of probable cause is, as we have seen, essential to every suit for a malicious prosecution. Both that and malice must concur. Malice, it is admitted, may be inferred from want of probable cause; but the want of that cannot be inferred from any degree of even express malice. Sutton v. Johnstone, 1 T. R. 493; Murray v. Long, 1 Wend. (N. Y.) 140; Wood v. Weir & Sayre, 5 B. Mon. (Ky.) 544.”
“Q. You put this machine in Jaffe Bros.’ office, did you? A. Yes, sir.
“Q. You delivered it in Carbondale? A. Yes, sir.
“Q. Yourself? A. Yes, sir.
“The Court: On what date? A. It was on the 10th day of March, I believe, 1914, the day after the order was signed. It was signed on the 9th day of March, 1914, and I believe I delivered the machine the next day.
“Q. How were you paid for this machine, if at all? A. Why, I was supposed to be paid $10 on the delivery of the machine, and thereafter they were to pay $10 a month.
“Q. Did you receive $10 when you delivered the machine? A. No. Jaffe himself was not there when I delivered the machine, and I got it two or three days after that.
“Q. Who paid you that $10 you got a few days after that? A. If I recollect correctly, I think it was left in the office for me, and Miss Nolan gave it to me, when I called.
“Q. Who was Miss Nolan? A. She was the stenographer for Jaffe Bros.
“Q. How large an office did Jaffe have? A. Oh, one room. I should judge 15 to 20 feet, or something like that.
“Q. Was anybody present when you leased this machine? A. Only Miss Nolan, the stenographer.
“Q. She was in the roomf with you at the time? A. Yes; she had to say that the machine was all right before I got the order for it. * * *
“Q. Did you receive any other payment on that machine? A. No.
“The Court: Ten dollars is all you received? A. Ten dollars is all we received on the machine.
“Q. Did you ever go there and ask for it? A. Yes. * * *
“Q. Whom did you see in Jaffe Bros.’ office on the visits subsequent to the time of the delivery Of the machine? A. Miss Nolan. •
“Q. Did you ever say anything to her — ■ A. Every time I called there I talked to her in regards to it, and wanted to know when he would be .in, and after I had called a number of times, and found from things I had heard and*687 seen around there with other people running- around there after money that things looked rather shaky. * “ * After I found these conditions, I asked Miss Nolan if she got her money regular, knowing that they were owing every one else, and she told me she got her money every Saturday, and I then asked her if she would get, the next time she saw Jaffe, to get the payment of §10 which was past due for the machine, and to keep it for me until I got hack again; hut before I got back again was the timo I saw the item in the paper of the goods having been removed on Sunday night.
“Q. When did you see that? A. I believe it was on the 2d of June, in one of the Scranton papers.
“Q. In 1914? A. In 1914.
“Q. What did you — '-when you saw this — after seeing the article? A. I went to Carbondale on the next train after that.”
The proofs show that, after seeing an item in the Scranton papers that Jaife’s goods had-been removed on a Sunday night, Holden went to Carbondale, and there saw Dr. Stenson, a dentist who had an office in the building. The testimony in that regard is:
“Q. Did you make any inquiry as to the— A. And I went up to the building- where the goods were taken from, and I saw Dr. Stenson.
"Q. Who is Dr. Stenson? A. He is-a doctor or a dentist in the same building where Jaffe Bros, had their office, and found out what he knew about the goods being taken out.
‘‘Q. Where is his office from Jaffe Bros.’ office, the office occupied by Jaffe? A. J believe it is on the floor below Jaffe, on the second floor in the Aitken building.
"Q. Do. you. know where the Aitken building is in Carbondale? A. On Hie corner of Alain street, but I could not tell you now the name of the cross street.
“Q. What is the Aitken building, aS to whether an office building or what? A. The ground floor is taken up with offices-outside of doctors.
“Q. What did Dr. Stenson tell you? A. He told me of hearing the commotion of them running up and down stairs just previous to midnight on this Sunday night, and he went out to investigate what the noise .was, and found Dena Nolan and her brother and John Farrell, the drayman, removing furniture from Jaffe Bros.’ office, and he went and notified Air. Aitken, the proprietor, the owner of the building. * * And he told me of notifying Air. Aitken about it, and also told me that Air. Aitken had come down immediately and went down towards Air. Nolan’s house after being informed by Dr. Stenson who was removing the goods, he went down there, and after that I went and seen Mr. Aitken. Ho told me what he had seen and found out down there.
"Q. What did he tell you? A. He told me that he went down there and met a couple standing across the street from Nolan’s, and he asked them if they had seen anybody take furniture from a wagon to Nolan’s house, and they said they had, and 1 believe they told him who the drayman was, or he found out in some way.
”Q. Did he tell you who the drayman was? A. He told me the drayman -was a man named Farrell.”
The personal knowledge of Stenson, who communicated what he knew to Aitken, the landlord, was as follows:
“Q. Where do you live? A. Carbondale.
“Q. Whereabouts do you live? A. In the Aitken block. I have an office and living apartments there.
“Q. You live in the Aitken building, also have living apartments there? A, Yes.
“Q. Do you remember the office of Jaffe Bros.? A. I do.
“Q. Where was that with regard to your office? A. Well, that was located om the third floor. I am on the second floor.
*688 “Q. Was it over your office? A. No, sir; in the other end, in what we call the new part of the building.
“Q. Do you remember when the goods were removed from Jaffe Bros.’ office? (Objected to.)
“Q. Do you remember any goods in the office of Jaffe Bros. ? A. Yes, sir.
“Q. -Do you know when they were moved out? A. Yes, sir.
“Q. When? A. They were moved out on Sunday night, of May 31st.
“Q. On May 31, 1914, this was? A. Yes, sir.
“Q. That was Sunday night? A. That was Sunday night.
“Q. What time? A. Twixt the hours of 11 and 12 o’clock.
“Q. At night? A. Yes, sir.
“Q. Do you know who moved it? A. Johnny Farrell was the drayman.
“Q. Who was with him? A. I didn’t see anybody with him. There was the Nolan boys and Nolan girl there, and a lot of other people in there helping move out the — I could not say who. All I know is when I heard them moving out I went up the street and notified Mr. Aitken.” •
The testimony of Aitken, the owner of the building, was:
“Q. Where do you live? A. Carbondale.
“Q. How long have you lived there? A. Sixty-odd years.
“Q. You are the owner of the building known as the Aitken block? A. I am.
“Q. You were the landlord of Jaffe Bros.? A. I am, or was.
“Q. Also have been since? A. Yes.
“Q. On the evening of May 31, 1914, were you informed about the removal of any goods from that building? A. I was.
“Q. About what time? A. Midnight.
“Q. Who informed you? A. Dr. Stenson did. * * *
“Q. What did you do then? A. Instead pf following the dray, I went direct to Nolan’s house. * * *
“Q. Did you learn whether the dray had been there? A. I did.
“Q. Did you learn where that dray had stopped? A. I did. * * *
“Q. When was your first conversation with Holden on this subject? About when? A. During that week some time.
■ “Q. Now, go on and state just what you told Holden with reference to this subject. A. I told what I had been told by the lallygaggers on the other side of the street, that the dray had backed up to Nolan’s house, unloaded, and driven away just before I arrived there. They told me that the drayman was— * * * I told Mr. Holden the facts as they came to me. I followed the dray to the barn and caught the drayman as he was locking the door. I said, ‘Did you take any of the goods you swiped from my building mto the bam?’ He said, ‘No, everything was delivered at Nolan’s.’ I told Holden I said to the drayman: ‘You must be getting hard up to be stealing •goods Sunday night that had been levied on. It is liable to bum your fingers. You must be hard up to be made a tool of a bank robber.’ He says, T didn’t know, Mr. Aitken, that those goods weren’t all settled for. Nolans told me they had settled with you entirely or I would not have taken them.’ He wanted to talk more, and I told him I had nothing more to do with him, and I turned my back and went and swore out a search warrant for the .goods that I had previously levied on. I told Mr. Holden also the fact that the goods had all been taken from the building, probably $800 worth, and were undoubtedly at the house where they had been dumped. Also, that I had notified the officer who had served the landlord’s warrant that the goods upon which he had made a levy had been removed, and told him that I was about to or had issued a search warrant for their recovery. I can’t repeat all that I told Mr. Holden. I told him the facts as they came to me. * * * I also told him that I intended — I think he asked me if I intended to recover the goods, and at that time I told him that I did.”
In addition to this undisputed testimony as above quoted, there is, of course, much other testimony in the case which was disputed; but we confine ourselves to the undisputed .information which came to
Jn the course the trial took, however, the trial judge did not decide this question of law, but left it to the jury to decide. This it did because of. the fact that the prosecution Holden started finally resulted in - a verdict of acquittal, the court ruling during the trial, “The case as it stands at the present time, by reason of the entering of ’a verdict, the burden is shifted and it is upon the defendant to show probable cause,” and following that up in the charge where the jury were told:
“Prosecutions are presumed to Rave been properly instituted, and hence, to sustain an action for malicious prosecution, malice and want of probable cause must both concur and be proved by tlie plaintiff. The only case where the burden of proof is shifted is in the case of a verdict of acquittal. A verdict of acquittal is evidence of want of probable cause, though it may be slight; the effect to ho given to such a verdict depends upon the < imimstunees upon which it was rendered, and you may take into consideration that it was by direction of the court, without submitting any evidence in determining the amount of weight to be given to the verdict of not guilty returned in this case.”
Was the court right in thus, in effect, turning over the question of probable cause to the jury because there had been a verdict of acquittal? Without here discussing what would have been the effect had there been a verdict of acquittal, and if there had been a trial of the ■cause, the fact in this Case was that when the case was called for trial Holden, the prosecutor and principal witness, failed to appear through
“In ordinary cases it will not be sufficient to show that the plaintiff was acquitted of an indictment by reason of the nonappearance of the defendant.”
This text-book summary has the support of adjudged cases. In Purcel v. McNamara, 1 Campbell, 199, 9 East, 361, an action for malicious prosecution,- it appeared that after the indictment found was ready for trial the prosecutor (the defendant) was called and did not appear. Whereupon Eord Ellenborough, C. J., said:
“The question comes in fact to this, whether proving an acquittal for lack of prosecution be prima facie evidence of malice to support an action for a malicious prosecution; the contrary of which has been always held. The want of probable cause may indeed be so strong and plain as to amount to evidence of malice; but that must be shown by the plaintiff.”
This same case was reported in 1 Campbell, 200, and Eord Ellen-borough is there reported as saying:
“To hold, then, that because a prosecutor did not appear at the trial, no proof of the want of probable cause is requisite on the part of the plaintiff, amounts !o this, that there is a presumption that everyone, against whom an indictment is found, is indicted without probable cause.”
In the case of Roberts v. Bayles, 3 N. Y. Super. Ct. 49, the question involved was whether “the judgment of non pros, was of itself presumptive evidence of the want of probable cause.” The court held it was not, saying:
“The effect of the ruling of the judge was to throw on the defendants the burthen of showing that there was probable cause, instead of throwing it upon the plaintiff to prove the want of probable cause. We think the learned judge, in holding non pros, to be prima facie evidence of the want of probable cause to institute the attachment proceedings, gave to it greater effect than it was entitled to; and that without something more, it did not make out the want of probable cause.”
“Malice, it is admitted, may be inferred by the jury from want of probable cause; but the want of that cannot be inferred from any degree of even express malice.”
The rule thus stated by the Supreme Court of the United States is generally held by the state cases, an example of which is King v. Col-vin, 11 R. I. 584, where the Supreme Court of that state said:
“Since the law presumes that every prosecution is undertaken from proper motives, and for sufficient reasons, the plaintiff in an action of malicious prosecution must prsve both malice and want of probable cause. It is not enough for him to prove that the prosecution was malicious, unless he also shows it to have been without probable cause; and, though malice may be inferred from the want of probable cause, the converse of that proposition is not true.”
It will thus be seen that all evidence of alleged malice was of no moment in this cause unless the plaintiff by proper evidence showed a lack of probable cause. Not only did Nolan fail to produce such evidence, but the proof of the defendant — in that regard uncontradicted —was that there was probable cause for this prosecution. Such being the case, the plaintiff having failed to show lack of probable cause, the question of the prosecutor’s ill will or malice was not decisive or evidential, and the court should have approved the defendant’s request for binding instructions on the ground that the plaintiff had not shown a lack of probable cause for the prosecution of Nolan.
The case is therefore reversed, and the record remanded to the court below for further proceedings.
