Cooper v. William R. Hart & Co.

• Decision Date: 21 March 1892
• Docket Number: 14
• Citation: 147 Pa. 594,23 A. 833
• Parties: Cooper v. William R. Hart & Co., Appellants
• Court: Pennsylvania Supreme Court

23 A. 833

Cooper v. William R. Hart & Co., Appellants

147 Pa. 594

No. 14

Supreme Court of Pennsylvania

March 21, 1892

Argued January 2, 1892

Appeal, No. 14, July T., 1891, by defendants, William R. Hart & Company, from judgment of C.P. No. 1, Phila. Co., June T. 1890, No. 189, on verdict for plaintiff, George P. Cooper.

Trespass for malicious prosecution.

The facts appear by the opinion of the Supreme Court.

BREGY J., charged in part as follows:

"[For the purposes of this case I charge you that if Mr. Cooper's story is true -- and it is the only story now before you -- there was no probable cause on the part of the defendants to bring the action against him -- that is, to issue the warrant against him.] . . . .

"If you come to the conclusion that your verdict should be for the plaintiff -- that there was want of probable cause -- if you are satisfied from the evidence that there was malice against the plaintiff, then you will have a right to give such punitive damages as will punish the defendants for the injury and disgrace, and whatever else they may have inflicted upon the plaintiff." [2]

The defendants' point which was refused was as follows:

"That under all the evidence in the cause, the verdict of the jury should be for the defendants." [3]

Verdict and judgment for plaintiff for $10,000. Defendants appealed.

Errors assigned were (1-3) instructions, as above.

Judgment reversed.

Richard C. Dale and John G. Johnson, for appellants. -- Probable cause is a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the person accused is guilty of the offence with which he is charged: Munns v. Dupont, 1 Amer. Lead. Cases, 213; Broad v. Ham, 5 Bingham's N.C. 722; Braveboy v. Cockfield, 2 McMullan, 270; Bacon v. Towne, 4 Cush. 238; Foshay v. Ferguson, 2 Denio, 617; Seibert v. Price, 5 Watts & Sergeant, 438; Travis v. Smith, 1 Pa. 234; Smith v. Ege, 52 Pa. 419; Cabiness v. Martin, 3 Dev. 454; Gilliford v. Windel, 108 Pa. 142; Bernar v. Dunlap, 13 Norris, 329.

It is impossible to say that there was a lack of probable cause, in view of the fact that Judge SIMONTON, after Cooper's story had been told to him, found that there was not only probable cause for the arrest, but that Cooper had actually committed a fraud.

The affidavits of Bertolet and of Pilling furnished to Barnes, one of the defendants, probable cause for demanding a warrant of arrest.

The testimony established the existence of probable cause at the time the warrant of the arrest was demanded.

Edwin W. Jackson, Wendell P. Bowman with him, for appellee. -- The proceeding of Judge SIMONTON in issuing the warrant of arrest having been reversed by this court as irregular, the plaintiff could have recovered damages for false imprisonment; and his action at common law for this purpose would have been trespass. But as he sought to recover from the defendants for maliciously procuring the issuance of the warrant, he would at common law have been remitted to an action on the case in which it would be necessary to allege and prove malice: Allison v. Rheam, 3 S. & R. 139; Berry v. Hamill, 12 S. & R. 210; Sommer v. Wilt, 4 S. & R. 19; Kerr v. Mount, 28 N.Y. 659; Miller v. Adams, 52 N.Y. 409.

In all cases, where it appeared that the plaintiff had been in fact innocent, and the defendant relied upon a "reasonable ground of suspicion" as affording probable cause, the circumstances upon which the suspicion was based, and the fact and manner of bringing them to the knowledge of the defendant, were shown by affirmative proof. "In general the plaintiff must give some evidence showing the absence of probable cause. But such evidence is in effect evidence of a negative, and very slight evidence of a negative is sufficient to call upon the other party to prove the affirmative, especially where the nature of the affirmative is such as to admit of proof by witnesses:" Lord TENTERDEN, C.J., in Cotton v. James, 1 Barn. & Adolph., 128; s.c., 20 Eng. Com. Law Rep. 358. Mere belief is not enough, however sincerely entertained: Winebiddle v. Porterfield, 9 Pa. 137; Merriam v. Mitchell, 13 Me. 439; Galloway v. Stewart, 49 Ind. 156; Honneycut v. Freeman, 13 Iredell, 320.

The charge of the learned judge in regard to damages was clearly within the law. GIBSON, C.J., delivering the opinion of the court in Pastorius v. Fisher, 1 Rawle, 27, says that in cases of personal injury damages are given not to compensate but to punish: Waterman on New Trials, vol. I, chap. XII; Voltz v. Blackmar, 64 N.Y. 440; Sommer v. Wilt, 4 S. & R. 19.

Before PAXSON, C.J., STERRETT, GREEN, WILLIAMS and McCOLLUM, JJ.

OPINION

MR. JUSTICE GREEN:

This was an action of trespass to recover damages for a malicious prosecution instituted by the defendants against the plaintiff. To sustain such an action it is necessary that two elements shall be established, without which the action fails. It must be shown that there was want of probable cause, and also that the defendants were actuated by malice. Both of these ingredients are essential and without them there is no cause of action. There is no dispute as to what the law is upon this subject. In Smith v. Ege, 52 Pa. 419, we said: "Probable cause does not depend on the actual state of the case in point of fact, but upon the honest and reasonable belief of the party prosecuting. It has been variously defined as such a suspicion as would induce a reasonable man to commence a prosecution: Cabiness v. Martin, 3 Dev. 454; or a reasonable ground of suspicion, supported by circumstances sufficient to warrant a cautions man in believing that the party is guilty of the offence: Munns v. Dupont, 3 Wash. C.C. 31; or, as in our own cases, a deceptive appearance of guilt arising from facts and circumstances misapprehended or misunderstood, as far as to produce belief: Seibert v. Price, 5 W. & S. 439, and Beach v. Wheeler, 30 Pa. 72. The substance of all these definitions is a reasonable ground for belief of guilt. It can make no difference what induces the belief, if it be reasonably sufficient. While mere floaaing rumors are not an adequate foundation for it, plainly, representations of others may be, and especially representations made by those who have had opportunities for knowledge, or who have made an investigation."

In Bernar v. Dunlap, 94 Pa. 329, we said: "It is we settled that to support an action for malicious prosecution, both want of probable cause for the prosecution and malice in the prosecution must be shown. Want of probable cause does not establish legal malice to be declared by the court; but it is evidence proper to submit to the jury. In an action against the prosecuror, if the plaintiff proves he was discharged by the examining magistrate, the burden of proof that there was probable cause as a general rule is cast on the defendant. If, however, the plaintiff's own testimony shows the existence of probable cause, it lifts the burden from the defendant. Such was the case here. The fact is unquestioned that the property of the defendant was stolen. The plaintiff proved by the magistrate, before whom the complaint was made, that the defendant was at his office with Mr. Curtis, that 'Curtis said he had seen Dunlap's gauntlets in possession of Mr. Bernan; my recollection is that Curtis said they were Dunlap's gauntlets; I then recommended the complaint to be made.' It is unnecessary now to decide whether the advice of the magistrate shall have the same protective power as the advice of counsel learned in the law. The express and distinct statement of Curtis made to both prosecutor and magistrate gave probable cause." The court below had granted a nonsuit, and we sustained it.

In Gilliford v. Windel, 108 Pa. 142, Mr. Justice GORDON said, in delivering the opinion of the court: "For, as we held in Smith v. Ege, 2 P. F. Smith, 419, and Seibert v. Price, 5 W. & S. 438, the question turns not upon the actual statement of the case, but upon the honest and reasonable belief of the party prosecuting, so where it appears that the defendant acted merely through mistake, or where the prosecution resulted from the mistake of the justice of the peace, before whom the information was made, the action cannot be maintained."

Recurring now to the facts of the case, we find that the malicious prosecution complained of by the plaintiff was a proceeding by warrant of arrest, under the act of July 12, 1842, and that the allegation upon which that proceeding was founded was, that the plaintiff had fraudulently contracted a debt for two carloads of pig iron, bought from the defendants by the firm of Cooper, Reynolds & Co., in June, 1888, of which firm the plaintiff was a member. The complaint upon which the warrant of arrest was issued was made before Judge SIMONTON, president judge of the twelfth judicial district of this state, who granted the warrant under which the plaintiff was arrested and held in confinement until the next day, when he was released on bail. Upon answer filed to the complaint the cause was subsequently heard before Judge SIMONTON, who, being of opinion that, under the proofs, the debt in question had been fraudulently contracted, ordered the plaintiff to be committed. Against this order a certiorari was taken out from this court, and the cause was brought before us, and, after hearing, the proceedings were reversed by this court upon the ground that the affidavit upon which the warrant was issued disclosed only a case of fraud in the subsequent breach of the contract, and not in its original making. Upon the trial of the present case the whole of the record, and all of the proceedings and testimony before Judge SIMONTON were given in evidence, and it then...