Ferguson v. Reinhart

• Decision Date: 29 January 1937
• Citation: 125 Pa.Super. 154,190 A. 153
• Parties: FERGUSON v. REINHART.
• Court: Pennsylvania Superior Court

190 A. 153
125 Pa.Super. 154

FERGUSON
v.
REINHART.

Superior Court of Pennsylvania.

Jan. 29, 1937.

190 A. 153

Appeal No. 326, October term, 1936, from judgment of Court of Common Pleas No. 3, Philadelphia County, No. 782, December term, 1933; Albert S. C. Millar, Judge.

Action for malicious prosecution by Martha L. Ferguson against Harry B. Reinhart. From an order granting a motion for judgment notwithstanding the verdict of $500 for plaintiff, plaintiff appeals.

Affirmed.

Argued before KELLER, P. J., and CUNNINGHAM, BALDRIGE, STADTFELD, PARKER, JAMES, and RHODES, JJ.

Walter Thomas and Albert L. Moise, both of Philadelphia, for appellant.

Morton Z. Paul, of Philadelphia, for appellee.

STADTFELD, Judge.

This was an action for malicious prosecution. Plaintiff, with one Fillipino, procured from the defendant a radio receiving set on a bailment lease which was signed by both the plaintiff and the said Fillipino. After default in the performance of the terms of the lease, and failing to regain possession of the radio set which had been left in the possession of the plaintiff, after the disappearance of the said Fillipino, defendant had a warrant issued for the arrest of the plaintiff on a charge of larceny by bailee and fraudulent conversion. Plaintiff was arrested, held for court by the magistrate, and an indictment preferred against plaintiff, charging her with the crimes aforesaid. On the date fixed for trial, plaintiff pleaded nolo contendere, whereupon the trial judge, Bonniwell, made the following entry on the back of the indictment: "9/15/33. The defendant being arraigned, plead nolo contendere. Dist. Atty. sim. et issue. After hearing case, defendant not guilty. Com. pay costs."

Thereupon this action followed. The same came on for trial before Millar, J., and a jury. The testimony on behalf of plaintiff was to the effect that before the warrant was issued for plaintiff's arrest a suit had been brought by the defendant against plaintiff, Martha L. Ferguson, an alleged guarantor or surety under the bailment

190 A. 154

lease, for the recovery of the amount alleged to be due on the radio and judgment entered against her; that an execution had been issued thereon and returned nulla bona; that before the arrest was made the defendant's agent had threatened the plaintiff with arrest if she did not pay the amount of the judgment to defendant; and that defendant issued the warrant for the purpose of compelling plaintiff to surrender the radio or pay for it. The plaintiff testified that she had returned the radio to one of the agents of the defendant.

On behalf of defendant, Harry B. Reinhart, it appeared that when the installments under the bailment lease were not paid, demands were made of Mrs. Ferguson. She ignored them, and failed and refused to return the radio set. Defendant then investigated Mrs. Ferguson, and found that her statement on the bailment lease that she owned the hotel where the radio set was delivered was false. A Mr. Kunkle of the State Protective Bureau, a collection organization, in whose hands defendant had placed the claim, reported to defendant after investigation, "There was every indication they were trying to steal the radio."

At the trial of this case defendant submitted a point for binding instructions, which was refused, and the case submitted to the jury. A verdict was rendered in favor of plaintiff for $500, whereupon the defendant filed his motion for judgment n. o. v. This motion was granted in a per curiam opinion.

The assignments of error relate to the entry of judgment n. o. v. and to rulings on evidence. At the trial, plaintiff offered in evidence "that part of the indictment that appears on the indictment with the exception of the plea of nolo contendere." The objection to the offer was sustained by the court unless the entire indictment was offered in evidence. This action of the trial judge is assigned for error.

In justification of its ruling, we quote from the opinion of the lower court:

"In our opinion such a plea (nolo contendere) being in form a guilty plea and having the same effect as a guilty plea, negatives want of probable cause, as the plaintiff confessed her guilt, thereby admitting probable cause for the issuance of the warrant. The burden was upon the plaintiff in the presentation of her case to show want of probable cause to sustain her action. This being negatived by her plea, defendant's point for binding instructions should have been affirmed, and it follows that defendant's present motion for judgment n. o....