Dalton v. Godfrey
| Decision Date | 19 June 1922 |
| Docket Number | No. 49.,49. |
| Citation | 117 A. 635 |
| Parties | DALTON v. GODFREY. |
| Court | New Jersey Supreme Court |
Appeal from Supreme Court.
Action by Florence Dalton against Charles F. Godfrey. Judgment for plaintiff, and defendant appeals. Affirmed.
Harry Unger and Edwin G. Adams, both of Newark, for appellant.
Coult & Woodruff, of Newark, for respondent.
WALKER, Ch. This was an action at law commenced in the Essex common pleas, wherein the plaintiff claimed damages for (1) malicious prosecution, (2) libel, and (3) slander. When the plaintiff rested, defendant moved for a nonsuit, which was denied as to the count for malicious prosecution, but was granted as to the other two by consent. The case went to the jury, and plaintiff had a verdict, and from the judgment thereon defendant appealed to the Supreme Court, where it was affirmed. From the judgment of the Supreme Court he now appeals to this court. In the Supreme Court defendant assigned 11 grounds of appeal from the judgment of the Essex common pleas, and these are reviewable here under a notice of appeal to this court, wherein it is averred that the Supreme Court's judgment should have been rendered in favor of the defendant and against the plaintiff.
The grounds of appeal appearing in the record are argued under five points, as follows: (1) The trial court should have granted defendant's motion to nonsuit; (2) the trial court should have granted defendant's motion to direct a verdict for him; (3) such verdict should have been directed because defendant, in making the criminal complaint, acted upon the advice of counsel; (4) the trial court erred in refusing to charge that dismissal and abandonment of the criminal prosecution was not evidence of want of probable cause or of malice; and (5) the trial court erred in refusing to charge the falsity of the affidavit upon which plaintiff's arrest was made was insufficient to sustain the action. These points involve the first, second, third, fourth, fifth, and sixth grounds of appeal.
First. The defendant employed the plaintiff as his. housekeeper, and she had charge and care of his room. From it he missed a package containing money. This package defendant had brought home with him on November 8, 1920, and showed to her. She testified that the next day when she went into defendant's bedroom to make up his bed she found the package in a pillow slip and put it under the bed; that defendant and a friend of his were in the house all day, and about 4 or 5 o'clock in the afternoon plaintiff heard them discussing the matter of the money in the package; that his friend suggested that defendant show the money to the plaintiff, but she requested him not to open the package and to take care of it; that defendant then went back into his bedroom with it, and that was the last the plaintiff saw of it; that the two friends had been drinking heavily all that day, and shortly after his friend left the defendant came into the kitchen and asked where was his money, and plaintiff replied that she did not know; that plaintiff suggested that he hunt for it, stating that there had been nobody in the house and that he must have mislaid it: that they looked for it and then defendant got very excited and said he would give her five minutes to get the money or she would go to jail; that plaintiff persisted that she did not know where his money was, and defendant thereupon telephoned to the police station and an officer came and arrested the plaintiff, and she was held in jail all night. The defendant had sworn to a complaint of larceny against her. In the morning, without any hearing, plaintiff was taken by the officer back to defendant's house— the defendant and his attorney accompanying them—for the purpose of searching for the package of money, and the policeman found the package under some cases of whisky in the closet of defendant's bedroom. It was the plaintiff who suggested that they look in the closet, because, she said, the defendant went in there the previous afternoon with the package in his hands.
On the day set for hearing the complaining witness did not appear, and the recorder sent for him, and he stated that he did not care to go on with the case as he wished to withdraw it. The recorder thereupon dismissed the complaint. There was testimony of the plaintiff and physicians regarding her suffering as a result of the episode and proceedings. There was some other testimony, but it is unimportant for the purpose of disposing of the question of nonsuit, which was moved for at the close of plaintiff's case. From this evidence the guilt of the plaintiff could not reasonably be inferred, and therefore the denial of the nonsuit was right.
Second. The point that, at the close of the whole case, the undisputed facts showed reasonable and probable cause, and that therefore there should have been a direction of verdict in favor of defendant, is argued upon the assumption that the essential facts were not disputed; that defendant's evidence as to probable cause contains substantially only the additional testimony by him that plaintiff had admitted to him that she had taken the money, which she denied.
It is true that the defendant testified that when he accused the plaintiff she said that she had the money and she would like to see him get it. After that he called up his attorney and asked him about making a complaint and was advised by the attorney to make it. Thereupon he telephoned the police to come and arrest the plaintiff, went to the police station with her and made the complaint. He denied that he or his friends were Intoxicated on November 8th or 9th, but said that they had several drinks in his home and that plaintiff had drunk with them. His friend, a man named Coley, testified to the same effect. On rebuttal, the plaintiff denied that she had taken any intoxicating drink, and denied that she admitted to defendant that she had taken the money. The policeman testified that defendant was under the influence of liquor at the time he caused plaintiff's arrest, which he qualified by saying that he believed defendant knew what he was talking about and doing; that his breath smelled of liquor. If the jury had believed the story told by the defendant they might...
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