Angelozzi v. Cossentino

Decision Date09 June 1931
Docket Number2.
Citation155 A. 178,160 Md. 678
PartiesANGELOZZI ET AL. v. COSSENTINO.
CourtMaryland Court of Appeals

Appeal from the Baltimore City Court; Joseph N. Ulman, Judge.

Action by Nicholas Cossentino against Nicholas Angelozzi and another, individually, and as partners trading under the name of the Angelozzi Construction Company. Judgment for the plaintiff, and the defendants appeal.

Judgment reversed without a new trial.

Argued before URNER, ADKINS, OFFUTT, DIGGES, PARKE, and SLOAN, JJ.

Rowland K. Adams of Baltimore (O. Bowie Duckett, Jr., of Baltimore, on the brief), for appellants.

R Lewis Bainder, of Baltimore, for appellee.

PARKE J.

Nicholas Cossentino brought an action for false arrest and malicious prosecution against Nicholas Angelozzi and Frank Angelozzi individually and as partners trading under the name of Angelozzi Construction Company. The defendants interposed a plea of not guilty, and the case went to trial before a jury upon whose verdict the judgment was entered from which this appeal is taken. There are three exceptions to the rulings on evidence, but the important exception is to the refusal of the court to grant a prayer taking the case from the jury on the ground of the legal insufficiency of the evidence to establish a cause of action.

The plaintiff's right of recovery depended upon these facts. The firm was engaged in laying a sewer in one of the public highways of the municipality of Baltimore. Several large trench-digging machines were in use, and were operated by an engineer and a second man, whose employment was to keep the machine level. An excavator was wrecked, while in action, on the morning of October 21, 1929, by an explosion of such violence and destructive effect as clearly to indicate an extraneous and criminal agency.

The following day the local policeman was notified by the defendants that their excavator had been damaged by an explosion, but they did not charge any one with responsibility for the occurrence nor did they have any suspicion of who had caused the injury. The officer reported the matter to his superior lieutenant, Martin H. Nelson, who assumed charge of the investigation and went to the scepe of the explosion and interviewed the defendants. The lieutenant asked if the defendants suspected anything or if they had any trouble with any one, and they both replied in the negative. Then the officer put the further question whether the defendants had any trouble with any of their employees or feared anybody. The answer of Frank Angelozzi was, "Only one boy, that was Saturday, my foreman laid him off." In response to the officer's request for the name, the plaintiff's was given. The officer then left, and on his own motion interviewed one of the plaintiff's coemployees from whom he learned that, after moving the plaintiff from his shovel, this employee had had trouble with the plaintiff three months before, and that afterwards the gears of the machine had been broken by sabotage, a big bolt having been put in the interior of the machine; and one William Prime another laborer of the defendants, was told by the plaintiff on Saturday night, October 19, that the plaintiff was going to blow up the defendants' machines with the exception of the one with which Prime was working. On the strength of this information, but without the knowledge or request of the defendants, and entirely on his own responsibility, the policeman arrested Nicholas Cossentino, and took him to the station house where he was questioned. As a result, a clue was obtained that enabled the officer to find a witness, who, with the plaintiff and three other men, were in an automobile near the place of the injured machine, and who stated that the plaintiff had left the automobile and was gone for about fifteen minutes and then came back and said, "I don't like this damn contractor."

The policeman then preferred at the station house a charge against the plaintiff, and Louis Julian and Salvadore Julian, two of his companions in the automobile, with the unlawful and willful destruction of the excavating machine of the defendants. With the preferring of this charge, the defendants had nothing to do, nor did they participate in any act relating to the apprehension, detention, and accusation of the plaintiff and his two associates until the defendants, with nine other witnesses were summoned to appear at the hearing on October 24th of the plaintiff and two of the men with him in the automobile. The defendants were summoned to appear at this hearing, where they testified on the call of the officer who had conducted the investigation. After hearing the testimony, the magistrate discharged the two Julians, but held the plaintiff for the action of the grand jury. The defendants, with other witnesses, were summoned by the grand jury, which found an indictment against the plaintiff for the unlawful and willful destruction of the property of the defendants. A summons was issued by the state for the defendants, and Nicholas Angelozzi was returned summoned, and Frank Angelozzi non est, but the latter was notified by a police officer to attend the trial, and both defendants were present and testified, as did other witnesses, on the call of the state. The plaintiff was found not guilty.

In these outlined proceedings, whose details appear on the record, there is no testimony legally sufficient to support a finding that the defendants either caused or participated in a wrongful arrest of the plaintiff. The proof is clear and decisive that the arrest, detention, and prosecution of the plaintiff were the independent, discretionary acts of a public officer in the regular performance of a duty which a precedent investigation had cast upon him by revealing probable cause to believe the plaintiff guilty of the crime charged. No serious contention is made that there can be a recovery under the count for false imprisonment, nor does there appear to be any legally sufficient evidence of an action on the case for malicious prosecution.

It is true that the plaintiff offered testimony which tended to prove that the defendants were witnesses at the hearing and at the trial, and, on both occasions, testified. Their testimony in the trial court did not implicate the plaintiff in the commission of the crime for which he was being tried. It is plain that the testimony of Frank Angelozzi on that occasion to the effect that the plaintiff had injured one of the machines by putting a foreign substance in its parts related to an earlier act; and the transcript of the testimony given by the other defendant does not ascribe the crime to the plaintiff. So the record does not show the defendants as testifying to anything which laid the crime to the plaintiff, except at the hearing before the police justice. The plaintiff swore "that at the hearing Nicholas Angelozzi and Frank Angelozzi testified against witness and said 'He put dynamite in the machine,' that ...

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3 cases
  • Wood v. Palmer Ford, Inc.
    • United States
    • Court of Special Appeals of Maryland
    • February 6, 1981
    ...187 Md. 656, 668, 51 A.2d 535, 50 A.2d 120 (1946); Fertitta v. Herndon, 175 Md. 560, 566-567, 3 A.2d 502 (1939); Angelozzi v. Cossentino, 160 Md. 678, 683, 155 A. 178 (1931); McNamara v. Pabst, 137 Md. 468, 474-475, 112 A. 812 (1921); Mertens v. Mueller, 119 Md. 525, 537, 87 A. 501 (1913); ......
  • Nance v. Gall
    • United States
    • Maryland Court of Appeals
    • December 12, 1946
    ... ... prosecution.'' ...           Fertitta ... v. Herndon, 175 Md. 560, 566, 3 A.2d 502, 120 A.L.R ... 1317; Angelozzi v. Cossentino, 160 Md. 678, 155 A ... 178, 180; Stansbury v. Fogle, 37 Md. 369, 384, 385; ... Gittinger v. McRae, 89 Md. 513, 515, 517, 43 A ... ...
  • Fertitta v. Herndon
    • United States
    • Maryland Court of Appeals
    • January 10, 1939
    ... ... action against the plaintiff, or had caused one to be ... maintained, or had voluntarily aided or assisted in its ... prosecution.' Angelozzi v. Cossention, 160 Md ... 678, 683, 155 A. 178, 180; Stansbury v. Fogle, 37 ... Md. 369, 384, 385; Gittinger v. McRae, 89 Md. 513, ... 515-517, ... ...

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