61 Pa. Super. 121 | Pa. Super. Ct. | 1915
Opinion by
Prosecutions are presumed to have 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 the plaintiff: McCarthy v. DeArmitt, 99 Pa. 63; Cooper v. Hart, 147 Pa. 594; Fry v. Wolf, 8 Pa. Superior Ct. 408. What is probable cause, and whether it exists, under admitted or clearly established facts, is a question of law for the court: Roessing v. Rys. Co., 226 Pa. 523. Malice in law exists where an act is done wrongfully and designedly by one person to the injury of another. Prosecutions may be instituted and pursued with pure motives but- so regardless of the forms of law and judicial proceedings, as to render the transactions illegal and malicious. It may be inferred from the want of probable cause, and generally is, but its existence is a fact for the jury: McCarthy v. DeArmitt, supra. The liability of the principal for the act of his agent in instituting an unfounded prosecution is governed by the general principles of agency, and where there is no express authority, and there has been no subsequent ratification of the act, the ultimate test is whether the agent acted within the scope of his implied authority. In determining this, each case must stand on its own facts. Markley v. Snow, 207 Pa. 447.
To relieve the defendant from liability, it was urged that the plaintiff and the officer had a controversy in regard to purchasing an umbrella, but the facts are so meagre and trifling, that the most that can be claimed for them would be, that in not being able to buy an umbrella for fifty c.ents less than the plaintiff demanded for it, McKenna was disappointed, and was disposed to interpret the company’s rules more rigorously than if he had prevailed in his bargain.
The jury was instructed, “You will consider all the facts and circumstances in evidence, and you will de
The whole case was fairly submitted to the jury in a charge so adequate, that no exception was taken thereto ; the only assignment of error being the refusal by the court to give binding instruction to find for the defendant.
The judgment is affirmed.