Hopkinson v. Lehigh Valley R. Co.

• Decision Date: 20 November 1928
• Citation: 164 N.E. 104,249 N.Y. 296
• Parties: HOPKINSON v. LEHIGH VALLEY R. CO.
• Court: New York Court of Appeals Court of Appeals

249 N.Y. 296

164 N.E. 104

HOPKINSON

v.LEHIGH VALLEY R. CO.

Court of Appeals of New York.

Nov. 20, 1928.

Action by Harold Hopkinson against the Lehigh Valley Railroad Company. Judgment for plaintiff on the verdict of a jury was affirmed by the Appellate Division (222 App. Div. 802, 226 N. Y. S. 832), and defendant appeals.

Reversed, and complaint dismissed.

Appeal from Supreme Court, Appellate Division, First department.

Clifton P. Williamson and Herbert S. Ogden, both of New York City, for appellant.

Isador Goetz, of New York City, for respondent.

CRANE, J.

Plaintiff for sixteen years had been in the employ of the defendant, and at the times here in question was the agent in charge of the freight station, pier 44, East River, where the principal commodity handled was flour. He had been in charge of that pier from the time it was opened in 1917, until his discharge or resignation on August 5, 1922. Rumors of irregularities in the delivery of flour coming to the attention of the plaintiff's superior, the matter was investigated, and it was found that there was an unusual shortage in bags of flour unaccounted for.

La Rosa & Di Fiore were consignees of a car of flour containing 350 sacks of ‘Red Ball’ brand, which arrived at pier 44, East River. They received notice that these sacks of flour were on the pier ready for delivery. Later 161 sacks of this flour were missing and delivery refused. Both members of the firm saw the agent, Mr. Hopkinson, who stated that some one else must have overdrawn on another car, and that we would make up the loss to them. Thereupon, at a later day, 161 bags of other flour were delivered to Di Fiore. The flour delivered belonged to another customer, named Morris Breiner. Hopkinson claimed and stated that Breiner had sold or authorized delivery of this flour to La Rosa & Di Fiore. This Breiner denied, and made claim upon the railroad company, for its delivery to him. In a letter of August 17, 1922, he wrote to the freight claim agent, Mr. H. E. Snyder, in reference to the 161 bags of flour, as follows:

‘I want to go on record with you that one day we went to the pier and the flour was there, and the next day it was gone, so there is no reason in the world why the L-V-R-R, should not get the ‘guilty party’ immediately.'

He also made an affidavit for the company to the same effect, stating that he had at no time either personally or by representative authorized Harold Hopkinson to deliver 161 bags of his flour to the La Rosa & Di Fiore Company, or any one else.

Another shortage of 35 bags, belonging to a man named Sellinger, was also discovered. Hopkinson also made false statements about this delivery. Other claimants pressed for missing flour, and their shortages could not be accounted for. Harry Lannon, who was a checker on the dock, reported that, after some deliveries had been made on the verbal instructions of Hopkinson, although written delivery orders were required, he (Hopkinson) had given money to him, saying that he had sold the flour. Upon an examination of the cashbook and the cash at the pier, there was found a check to the order of the Lehigh Valley Railroad Company for $275, made by Sam Held, a friend of the agent. Hopkinson explained this by saying that he had drawn $265.88 for legitimate expenses, but that he had put the money back in the form of this check, rather than have any trouble about it. The balance, which was the difference between the amount of the check and the amount drawn by Hopkinson, $9.12, was found in currency in an envelope in the back of the cash drawer. It also appeared that some of the receipts for the delivery of flour were forged.

I shall not attempt to detail all the evidence given in this case bearing upon the conditions at the pier regarding the delivery of flour, the methods of business, or all the facts revealed upon the investigation conducted by the railroad company beginning in June and lasting until the 1st of September, 1922, for the reason that the above facts furnish the groundwork for the law of malicious prosecution applicable to this case.

The railroad company presented all the facts which it had thus gathered to the district attorney of New York county. Mr. John F. O'Neil was the assistant district attorney in the office of Mr. Banton, having charge of this case. After looking over the papers submitted, he sent for all the witnesses and examined them himself before presenting the matter to the grand jury. He did not rely upon the affidavits or the information which the company had collected on its investigation. He desired to see the witnesses personally, which he did. He testifies in this case as follows: ‘After satisfying myself that the evidence produced, both personal and documentary, justified me in presenting the evidence to the Grand Jury, I so presented it and the Grand Jury returned an indictment against Hopkinson, charging him with stealing a certain number of bags of flour belonging to the Lehigh Valley.’ The witnesses who were called and examined before the grand jury included Jack Di Fiore, Morris Breiner, Harry Lannon, and others. After hearing these witnesses, the grand jury found an indictment, charging Hopkinson with grand larceny, in having stolen the 161 bags of flour, above referred to. The case coming on for trial in the General Sessions, the indictment was dismissed. Breiner, it is stated, went back on his testimony before the grand jury; but, whatever the cause, it is now immaterial.

The plaintiff has brought this action for malicious prosecution, and has recovered a judgment which has been affirmed by the Appellate...