Dietz v. Langfitt

• Decision Date: 03 January 1870
• Parties: Dietz <I>versus</I> Langfitt.
• Court: Pennsylvania Supreme Court

63 Pa. 234

Dietz versus Langfitt.

Supreme Court of Pennsylvania.

November 12, 1869.

January 3, 1870.

November 12th 1869.

Before THOMPSON, C. J., READ, AGNEW, SHARSWOOD and WILLIAMS, JJ.

Error to the District Court of Allegheny county: No. 133, to October and November Term 1869.

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Howard & Shaffer, for the plaintiff in error, cited Le Maistre v. Hunter, Brightly's R. 496.

T. M. Marshall cited Schofield v. Ferrers, 11 Wright 197; Smith v. Ege, 2 P. F. Smith 421.

The opinion of the court was delivered, January 3d 1870, by THOMPSON, C. J.

It is somewhat difficult in view of the facts of this case, to restrain an expression of surprise, if nothing more, at the result of the trial below. The action was for malicious prosecution, the facts relating to which are few, and easily stated.

The plaintiff below was the driver and conductor of a passenger railway car, and was driving through the borough of Lawrenceville, Allegheny county, on the 6th of April 1867, when, about noon of that day, he drove over and killed an infant aged about two and a half years, child of one George Boust, a citizen of the town. The defendant was the uncle of the deceased, and hearing of the accident went at once to the house of Boust, and finding the child crushed and at the point of death, proceeded, at the request of its parents and others present, to the office of a magistrate and procured a warrant for the arrest of the plaintiff on information made by himself, charging him with wilfully, wickedly, and carelessly driving over the child, and procured a warrant for his arrest for killing the child. The child lived some forty minutes after being run over and then expired. When the plaintiff was brought up, the child being dead, the magistrate refused bail and committed him. This was on Saturday, and he remained in jail till Monday. In the meantime a coroner's inquest had been held, and the jury found that the killing was accidental. In consequence of this he was admitted to bail for his appearance at court. At the ensuing term the case was sent to the grand jury, and the bill for murder, or perhaps manslaughter, was ignored. It is nowhere stated what the nature of the bill was; but it must have been for one or other of these offences, or both.

The plaintiff gave in evidence the bill of indictment to show the action of the grand jury upon it. This was a necessary part of his case. The defendant in order to show how this came about, and that he had no malice towards the plaintiff, which might have been an inference from the ignoramus of the bill, proposed to prove by the defendant on the stand, the only witness before the grand jury — "that he stated to them that as the coroner's inquest had found the killing had been accidental, he did not wish to prosecute further." The offer was rejected by the court. In considering this exception we must take the fact as true, and we may take it as true in stating the circumstances of the case. Under this state of facts, and notwithstanding the child was killed by the driving of the plaintiff in broad daylight in an open street, and notwithstanding the entire absence of express malice on part of the defendant, the jury rendered a verdict for the plaintiff of $225 and costs. Almost anybody would be ready to conclude that such a result must have had the aid of error somewhere. I presume it is the first time in the history of judicial proceedings that a prosecution for a homicide, unmistakably committed, begun before it could be known whether it was wilful, negligent or accidental, the prosecutor was ever punished for putting the law in motion to ascertain whether there was guilt in it or not. As all homicides are presumably unlawful, the fact of itself is probable cause for proceeding against the perpetrator. But I will proceed with the assignments of error.

The first is the ruling of the learned judge in rejecting the offer of testimony as above stated. Wherefore should it have been rejected? The witness was competent, the facts were not privileged from disclosure by the witness, and on the defendant's theory of his case in regard to malice, it was most material to the defence. There being, therefore, nothing like a good objection to it, it was clearly error to reject it, and the error is sustained.

The next assignment to be considered is the third (the second being totally defective and not to be noticed), and that relates to the remark of the learned judge about what transpired at the magistrate's office when the defendant applied for a warrant. I will give the whole of the remarks as to that matter, a part only of which is assigned for error, in order that we may more clearly see the force of it. "It would seem," said the judge, — "that 'Squire Jancey thought the father ought to be the proper person to make the information. The answer Dietz gave was, that the father had the child, and was too much excited to make the information against Langfitt. Was that a sufficient justification in this case? If it was, then Dietz is not liable, and the plaintiff cannot recover in this suit." This plainly left it to be inferred by the jury, that if they should think that it was not, the plaintiff might recover. This was entirely a new ground of recovery, regardless of everything but the question of the sufficiency of the reason for the non-appearance of the father to prosecute for the killing of his child. This endangered the defendant by a consideration entirely outside of the case.

If it might not have misled the jury to this extent, it could hardly have failed to have led them to believe that Dietz was not a proper party to procure a warrant for what appeared to be a palpable felony. It must have been an oversight in the hurry of trial, which led the...