Campbell v. Yellow Cab Co.

• Citation: 137 F.2d 918
• Decision Date: 31 August 1943
• Docket Number: No. 8016.,8016.
• Parties: CAMPBELL v. YELLOW CAB CO.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

137 F.2d 918 (1943)

CAMPBELL v. YELLOW CAB CO.

No. 8016.

Circuit Court of Appeals, Third Circuit.

Argued October 7, 1942.

Reargued July 12, 1943.

Decided August 31, 1943.

Bernard G. Segal, of Philadelphia, Pa. (Gilbert W. Oswald and Schnader & Lewis, all of Philadelphia, Pa., on the brief), for appellant.

Harry R. Kozart, of Philadelphia, Pa. (William Charles Brown, of Philadelphia Pa., on the brief), for appellee.

Before BIGGS, MARIS, JONES, GOODRICH, and McLAUGHLIN, Circuit Judges.

MARIS, Circuit Judge.

The plaintiff, a citizen of Pennsylvania, brought suit in the District Court for the Eastern District of Pennsylvania against the defendant, a Delaware corporation, to recover damages for an alleged malicious prosecution and false imprisonment. At the close of the case the defendant moved for a directed verdict, which motion was denied. The jury returned a verdict for the plaintiff and assessed compensatory damages at $3,000 and punitive damages at $2,500. The trial court denied motions for a new trial and for judgment n.o.v. and entered judgment for $5,500 for the plaintiff. The circumstances giving rise to the plaintiff's claim were as follows:

On August 24, 1940, at 1.15 A.M. two men held up a taxicab owned by the defendant and operated by its employee, William Berry. They took from Berry $1.10 of his money, 40 cents in fares belonging to the defendant and the taxicab. Later in the day the taxicab was found abandoned. The meter registered $4.85. Berry, in accordance with the defendant's rules, paid over to the defendant the amount of the stolen fares and the meter charges. He reported the holdup to the defendant and then, accompanied by a supervisor, reported to the police to whom he gave a description of the highwaymen. He did not see the taller of the two robbers full face at any time. He did, however, see his face from the bridge of the nose down, the top and back of his head, the color and thickness of his hair and his complexion. Also he heard him speak and observed his gait. He was able to estimate the robber's age, height and weight.

On October 19, 1940, a policeman took the plaintiff into custody on suspicion of rifling an automobile in the Logan district of Philadelphia where the holdup had occurred. Because Berry's description of the taller robber seemed to fit the plaintiff the police telephoned Berry who went to the police station where the plaintiff was being held pending investigation and identified the plaintiff as one of the men who had robbed him. The same day Berry returned for a second look at the plaintiff. The following morning the plaintiff was taken by the police to the magistrate's court where Berry once again identified him. The magistrate held the plaintiff without bail for a further hearing. According to the plaintiff's testimony he was held for further hearing in response to a request by James F. Hardy, an individual employed by the defendant as a special agent and investigator. This testimony was contradicted by many witnesses called by the defendant. At the second hearing on October 26, 1940, the plaintiff was held without bail for court. Neither Berry nor Hardy actively participated at this hearing. Subsequently the plaintiff was indicted and charged with criminal offenses arising out of the holdup. On October 31, 1940, the plaintiff was brought to trial but the case was continued at his attorney's request.

On November 6, 1940, the police arrested two men who confessed to the robbery. Later they were tried, convicted and sentenced. The defendant thereafter reimbursed Berry for the stolen fares and for the meter charges which he had previously paid. As described by Berry one of the robbers was 23 years old, five feet eleven inches tall, weighed 180 pounds, with a light complexion and light brown hair, and of Irish descent. One of the confessed robbers was about 24 years old, five feet eleven inches tall, weighed 170 pounds, and had light brown hair. A detective testified that the man who confessed to being the robber looked so much like the plaintiff that they could be taken for the same person. In a signed statement given to the defendant on November 11, 1940 Berry said "After I got home from this hearing on October 19, 1940 probably October 26, 1940, I started to think this case over and saw quite a few flaws which I did not see at the time of identification or either hearing. A doubt arose in my mind whether this was the man who held me up or not." On November 12, 1940, the plaintiff was again brought to trial. At this trial Berry testified that he was mistaken in his identification. At the request of the district attorney and the attorney for Campbell the trial judge directed a verdict of not guilty and Campbell was discharged.

The defendant contends that several of the elements essential to the recovery of damages in an action for malicious prosecution are missing in the plaintiff's case.¹ The defendant urges that neither it nor its employees initiated nor procured the institution of criminal proceedings against the plaintiff, that if either Berry or Hardy did procure the prosecution they acted without authority and that the effect of lack of authority was not overcome by later ratification. It further urges that the evidence does not support a finding that either Berry or Hardy acted without probable cause and with malice. For these reasons the defendant argues that the refusal of the trial court to direct a verdict and thereafter to enter judgment in its favor was error.

We shall direct our attention first to the question whether Berry initiated or procured the institution of criminal proceedings against the plaintiff and whether the jury's finding that he did, which is implicit in its verdict for the plaintiff and its special findings² can be sustained by the evidence. The evidence is uncontradicted that Berry did not cause the arrest of the plaintiff, that he came to the police station to identify the plaintiff only by reason of a telephone request by the police, that he did not seek the continued detention of the plaintiff, did not request that the plaintiff be brought before the magistrate and did not press for the subsequent trial of the plaintiff. His sole role was to identify the plaintiff as one of the robbers. He at no time took the initiative. He at no time, either expressly or by indirection, directed, requested or exerted any pressure upon the police to proceed with the prosecution of the plaintiff.

The statement by the trial court that the real prosecutor or instigator of a malicious prosecution cannot escape liability by showing that he was not the prosecutor of record is fully supported by the cases cited.³ Neither the statement nor the cited authorities, however, can have any application to a case such as this, where a person called upon by police officers to identify a suspect merely makes an identification and does not otherwise attempt to influence the officers in the exercise of their discretion as to the prosecution of the person identified. If under such circumstances the person making the identification believes it to be correct he is not deemed the instigator of criminal proceedings subsequently begun by the police officers in the exercise of their discretion even though his identification may have been without probable cause and with malice. Restatement of Torts, § 653, Comment g. The uncontradicted evidence in this case indicates that Berry believed his identification of the plaintiff to be correct when he made it. It also indicates that, aside from the identification, he did nothing whatever to influence the police officers in the action they subsequently took. The subsequent holding of the plaintiff upon the charge of robbing Berry was not at the latter's instance.

The facts in King v. Martin, 1928, 150 Va. 122, 142 S.E. 358, are quite similar to those in the case before us. The defendant in that case was held up and robbed at the point of a gun by a man who was in the shadow and whose features the defendant was unable to distinguish for that reason. The defendant gave a description of the burglar to the police, his description being limited largely to the man's size and general appearance. Later the police asked the defendant to look at the plaintiff whom they had in custody and whom they believed to be the burglar. From among ten or twelve men presented for his inspection the defendant selected the plaintiff and said "This is him" and when admonished to be certain in his identification nodded his head. He did not request that the plaintiff be arrested or held. A warrant was sworn out upon complaint of a police officer, the plaintiff was indicted, tried and acquitted. The defendant was called as a witness and testified both before the grand and petit juries. The plaintiff after his acquittal brought an action against the defendant and others for malicious prosecution and secured a verdict and judgment against the defendant. The appellate court reversed and entered judgment for the defendant on the ground that there was no evidence that the defendant caused or procured the plaintiff's arrest, indictment or trial. The court's reasoning is so apposite that we quote from the opinion at some length (142 S.E. at page 360):

"Here is a situation where a house-holder is held up at the point of a pistol and robbed, and thereafter places himself entirely in the hands of the duly constituted authorities. Not one single active or voluntary step was taken by him at any stage of the proceedings. The plaintiff was first summoned to the police station by Detective Nowitsky without defendant's knowledge or procurement. Mr. King went to the police station only when summoned to come there by police officers. When he arrived there he stated his honest belief; he did not request that Martin be held, or that he be arrested, or that he be jailed, but went on his way, having performed simply the duty which any good citizen should. Summoned to...