Hornin v. Montgomery Ward & Co.

• Decision Date: 14 May 1941
• Docket Number: No. 7590.,7590.
• Parties: HORNIN v. MONTGOMERY WARD & CO., Inc.
• Court: U.S. Court of Appeals — Third Circuit

120 F.2d 500 (1941)

HORNIN v. MONTGOMERY WARD & CO., Inc.

No. 7590.

Circuit Court of Appeals, Third Circuit.

May 14, 1941.

Laurence E. Oliphant, Jr., and Stuart S. Ball, both of Chicago, Ill. (F. T. Barrett, of Chicago, Ill., and Ralph J. McAllister, of McKeesport, Pa., on the brief), for appellant.

Ben Paul Brasley, of Pittsburgh, Pa. (Brasley, Rubin, Balter & Cole, of Pittsburgh, Pa., and Robert Palkovitz, of McKeesport, Pa., on the brief), for appellee.

Before BIGGS, CLARK, and JONES, Circuit Judges.

JONES, Circuit Judge.

The plaintiff sued to recover damages for malicious prosecution for which the defendant was allegedly responsible. The jury returned a verdict for the plaintiff whereon the trial court entered judgment in a reduced amount pursuant to a remittitur filed by the plaintiff in compliance with the condition attached to the court's refusal of the defendant's motion for a new trial. A motion by the defendant for judgment on a question of law reserved was also denied. From the judgment entered the defendant took the present appeal.

The facts giving rise to the plaintiff's action show the following. During the time of the matters herein complained of, the defendant company owned and operated a department store in McKeesport, Pennsylvania, where Hornin, the plaintiff, was employed and had been so employed for about three years. A number of thefts of merchandise from the store having occurred, the apprehension of the culprits as well as the prevention of similar occurrences in the future was a matter of concern to the defendant company and to the manager of its store, one Stark. On June 22, 1938, the janitor of the store informed Stark that several well wrapped packages had been discovered in a coal bin in the basement. Stark immediately reported this fact to the local police, and two officers were assigned to lie in wait for the person for whom the packages had presumably been secreted in the coal bin. Early the following morning (June 23) one Kasmarek was taken in the act of trying to enter the cellar of the store. Stark and the police officers, being of the opinion that Kasmarek, who was not an employee of the store, had an accomplice among the defendant's employees, questioned Kasmarek extensively in such regard at the police station. Finally about 10:30 P. M. on the night of June 23 a police officer called at the home of the plaintiff, who had been absent from the store on vacation since June 14, and asked him to go to the police station. Hornin voluntarily did so. Upon arriving at the station, he found Stark and another police officer there. He was told that Kasmarek had implicated him and had stated that the two of them had arranged for the theft at a meeting in a public bar on June 13 or 14. The last thing Hornin had done at the store before leaving on his vacation was to take inventory in his department with the help of his assistant. After the inventory had been completed, Hornin and his assistant had left the store together and did not part until within a block of the plaintiff's home. From that time the plaintiff was not at the store except for one intervening visit as a customer. Nor did he possess a key to the store. It was developed from the janitor that the package had been placed in the cellar while the plaintiff was on his vacation. Although all of these facts were known to Stark, he nevertheless directed the plaintiff's detention as a suspect.

The plaintiff spent the night of June 23 in jail, not being permitted to communicate with anyone or to apprise his family of his whereabouts. At a hearing on the following morning before a committing magistrate and in response to the magistrate's inquiry as to whether there was to be a prosecution of Hornin, Stark answered "We do". The plaintiff was then held for court. His indictment followed and the case came on for trial in the criminal courts of Allegheny County, Pennsylvania, on October 13, 1938. After a jury had been impanelled and the case was ready for trial, Kasmarek, the prosecution's chief witness, showed strong reluctance, if not positive unwillingness, to take the witness stand. It appears from the evidence that he was finally induced to testify by threats of Stark that if he would not give evidence against the plaintiff "his Kasmarek's girl", who was an employee of the store, would be implicated. Kasmarek succumbed and took the stand. After having testified on direct examination in support of his assertion of the plaintiff's complicity in the crime, he broke down completely on cross-examination and stated that he had been compelled to implicate the plaintiff because of Stark's threats. The plaintiff's acquittal followed. As a consequence of the prosecution, the plaintiff sought compensatory damages for his inability to find gainful employment and for illness, counsel fees and embarrassment, all occasioned by the prosecution, and punitive damages.

Upon the defendant's motion for judgment n. o. v., the findings implied by the jury's verdict require that the evidence in the case as well as the reasonable inferences to be drawn therefrom be viewed in the light most favorable to the plaintiff. Cranston v. Baltimore & O. R. R. Co., 3 Cir., 109 F.2d 630; Muehlhof v. Reading Co., 309 Pa. 17, 19, 162 A. 827. The court's refusal of the defendant's motion for a new trial was not strongly urged here as error. In any event the motion was without merit. The trial court's very substantial reduction of the jury's verdict, to which the plaintiff assented, more than took care of any possible harm to the defendant through the plaintiff's failure to prove at trial the defendant's financial worth. There is one other question relating to the motion for a new trial with respect to the competency of evidence. This will be considered in connection with the defendant's motion for judgment as it goes to Stark's conduct and is material to a want of probable cause for the institution of the criminal proceedings against Hornin.

The questions presented by this appeal are:

(a) Did the plaintiff sustain his burden of showing the necessary elements of actionable malicious prosecution; and.

(b) Was there sufficient evidence of Stark's authority to bind the defendant company with the institution and maintenance of the criminal proceeding?

Under the law of Pennsylvania, which governs the rights of the parties to the present suit, the elements necessary to support an action for malicious prosecution are (1) the termination in the complainant's favor of the criminal proceedings involved in the action, (2) want of probable cause for the criminal proceedings, and (3) malice. Stinson v. Smith et al., 329 Pa. 177, 181, 182, 196 A. 843; Altman v. Standard Refrigerator Co., Inc., 315 Pa. 465, 477, 173 A. 411; Painter v. Roth et al., 118 Pa.Super. 474, 477, 180 A. 49; Randall v. Fenton Storage Co. (Randall v. Seligman) (two cases), 117 Pa. Super. 212, 214, 177 A. 575. That the prior criminal proceedings in this case terminated in Hornin's acquittal is not open to dispute; and it is also clear that that fact was both competently and fully established at the trial below.

Of the two remaining elements essential to the action, viz., want of probable cause and malice, it is legally permissible for the jury to draw an inference of malice from a finding of want of probable cause where the competent evidence is sufficient to support that finding. Herr v. Lollar, 268 Pa. 109, 112, 110 A. 742; Smith v. Walter, 125 Pa. 453, 468, 469, 17 A. 466; Humphreys v. Mead, 23 Pa.Super. 415, 418, 419. As the jury's verdict in the instant case implies a finding of want of probable cause, the inquiry here is whether there was sufficient competent evidence in such regard to support the jury's verdict. If there was, then it follows as a matter of law that the jury was entitled to infer malice. The verdict likewise implies that the jury so inferred.

As late as Altman v. Standard Refrigerator Co., Inc., supra, 315 Pa. page 480, 173 A. page 417, the Supreme Court of Pennsylvania quoted with approval its earlier definition of probable cause as stated in McClafferty v. Philp, 151 Pa. 86, 24 A. 1042, where it was said that ...