99 Pa. Super. 225 | Pa. Super. Ct. | 1930
Argued April 15, 1930.
This suit was brought and tried below and argued here by the plaintiff himself, who is the appellant. It was an action for damages for alleged malicious prosecution brought in the following circumstances as disclosed by the record, or as stated by the appellant in his history of the case. Plaintiff occupied a farm "as tenant and agent of the owner." Since 1908 a line of telephone poles and wires had been constructed over the farm pursuant to some oral arrangement the terms of which do not appear. On September 7, 1923, a written agreement was signed by the telephone company alone, stating terms under which occupation would be continued; the meaning of this agreement is not clear as to the date when the telephone company's rights should terminate. While plaintiff was under the impression that the telephone company's rights expired January 1, 1925, the company denied his interpretation of the contract, and during the discussion of the subject by the parties, the plaintiff on January 5, 1925, cut down several poles and also cut the wires. On the 6th of January, 1925, plaintiff was arrested on a warrant issued at the instance of defendant, pursuant to an information charging the plaintiff with malicious mischief in so cutting the telephone line. *227
The line seems to have been promptly restored, and on the 9th of January, plaintiff again cut it and pursuant to a warrant again issued at the instance of defendant, plaintiff was again arrested charged with malicious mischief in cutting the line on January 9th. In each case, he appeared before a justice of the peace, and was held in $500 bail for appearance at the next term of the quarter sessions. The record does not fully show what became of the prosecutions so begun, though it would appear that the cases have never been tried or otherwise formally concluded. On this subject the plaintiff himself testified: "I should say the first information sworn to, 34, sworn to by L.E. Whiting, and 35 sworn to by F.A. Brutcher, with order respiting it to the several terms. Mr. Shafer (plaintiff) offers in evidence Sessions Docket No. 17 of Crawford County, with the record on page 190, of proceedings taken in Shafer, in the court of quarter sessions; also page 191 Docket entries in the case of Commonwealth v. Lewis M. Shafer, No. 35, February Sessions, 1925." In Mishler v. Com.,
At the conclusion of the evidence offered by plaintiff on his behalf, the defendant produced testimony showing that after each of the instances of interferance with defendant's line, it presented the facts to its attorney and was advised in each case that a charge of malicious mischief could properly be brought against plaintiff and that counsel drew the informations on which the warrants were issued.
The learned court below was of opinion that plaintiff had not shown a right to recover and directed the jury to find for the defendant. Three assignments of error were filed; the first is to the exclusion of exhibit A to the statement of claim; this paper was the agreement of September 7, 1923, already referred to as stating terms under which the telephone company maintained and operated its pole line; though excluded, when offered, the court considered the paper as in evidence when ultimately disposing of the case, and we have done likewise. Plaintiff was therefore not injured by the ruling complained of. The second assignment complains that a verdict for the defendant was directed; the third is to the refusal of a new trial. Before considering them, it is to be noted that in the only statement of question involved, appellant states that he desires a review of the application of the rule concerning advice of counsel in cases of malicious prosecution. Notwithstanding that we generally limit our review to the specific statement of the question involved, we have reviewed, in the unusual circumstances of this case, the entire record in all its aspects suggested by appellant's brief. We think the court was right in directing a verdict for the defendant because the elements of a right of action for malicious prosecution had not been made out; for the same reason of course, the court was correct in refusing a new trial.
Plaintiff's evidence shows without dispute that there was a substantial difference of opinion between him and the defendant as to its rights on the land, and *229
that, instead of having these disputed rights determined in a proper action by a court having jurisdiction, the plaintiff took the law into his own hands and destroyed defendant's property: compare Com. v. Taylor,
It was clearly the duty of the court to direct a verdict for the defendant: Boyd v. Kerr,
Judgment affirmed.