Kirschman v. Pitt Publishing Co.

• Decision Date: 13 May 1935
• Docket Number: 120
• Parties: Kirschman, Appellant, v. Pitt Publishing Company
• Court: Pennsylvania Supreme Court

178 A. 828

318 Pa. 570

Kirschman, Appellant, v. Pitt Publishing Company

No. 120

Supreme Court of Pennsylvania

May 13, 1935

Argued March 29, 1935

Appeal, No. 120, March T., 1935, by plaintiff, from judgment of C.P. Allegheny Co., April T., 1932, No. 124, in case of Fred Kirschman v. Pitt Publishing Company. Judgment affirmed.

Trespass for malicious prosecution. Before FLEMING, P.J.

The opinion of the Supreme Court states the facts.

Verdict for plaintiff in amount of $25,250. Judgment n.o.v. entered for defendant. Plaintiff appealed.

Error assigned was judgment n.o.v.

The judgment is affirmed.

Harold E. McCamey, of Dickie, Robinson & McCamey, with him Charles A. Woods, Jr., for appellant.

Wm. S Moorhead, of Moorhead & Knox, with him M. H. Ewing, for appellee.

Before FRAZER, C.J., SIMPSON, KEPHART, SCHAFFER, MAXEY, DREW and LINN, JJ.

OPINION

MR. JUSTICE MAXEY:

The appellant, who was the plaintiff below, filed suit against the appellee in an action in trespass for malicious prosecution and false arrest. He claimed that the defendant Pitt Publishing Company, falsely charged that he "armed with a revolver did unlawfully on a public highway attack and rob affiant [an employee of defendant] of valuable papers of the value of $10." Upon this charge he was arrested, restrained of his liberty, and required to furnish bond for hearing, later being discharged by the justice of the peace. After trial the jury returned a verdict for the plaintiff in the sum of $25,250. Rules by defendant were entered for judgment n.o.v. and for a new trial. The rule for judgment n.o.v. was made absolute on the ground that the proof did not show that the individual who had the plaintiff arrested was authorized so to do by the defendant company.

This is the background of this case: In 1926, the plaintiff bought a regular newspaper route of the Sun-Telegraph. Sometime later the defendant became the publisher of this newspaper, and a controversy arose among the distributors, the result of which was that the circulation manager orally agreed that the dealers would be guaranteed the right to distribute this paper on their routes if they would cease delivering the Press. The plaintiff complied with this condition. He claims that sometime prior to the present controversy the defendant had been trying to take over his route and had been endeavoring to ascertain who his customers were. The plaintiff then talked to the circulation manager, stating that he would be willing to sell his route. The latter replied: "This is a big company. We don't buy anything like that; we will just go and take it." On July 28, 1930, a number of defendant's employees followed plaintiff's newsboys. Later plaintiff was informed that one of defendant's employees, Conner, was following another of his newsboys on his route, taking down customers' names. Plaintiff caught up with Connor, asked him to hand over the slips in his hand containing these names and to stop following the boys. A few days later plaintiff was arrested on the charge of "highway robbery and carrying firearms." Subsequently it was more specifically charged that he robbed affiant of valuable papers of the value of $10. He gave a bond for a hearing, and was later discharged.

The question here is: Was there sufficient evidence to go to the jury, which, if credited, would constitute legal support of the finding that Connor in making a criminal information against Kirschman was acting on the authority of the defendant? Plaintiff attempted to tie the Pitt Publishing Company (defendant) to his arrest, by the testimony of three witnesses, including himself. First, he testified that he asked Connor why the latter had had him arrested and Connor replied: "I didn't want to do it, but if I didn't do it, the Sun-Telegraph would have fired me." This testimony is incompetent to prove Connor's authority to make the information. At most, it expresses only Connor's opinion of what would have happened to him if he had not taken this action against Kirschman. This opinion must have been based upon either a conjecture or on what somebody connected with the "Sun-Telegraph" had told him. Who this somebody was does not appear, and if it did it would have to be followed by proof that this person had authority to act for the Pitt Publishing Company on a matter of this kind. This testimony is too imponderable to count for anything in the legal scales which determine whether plaintiff came forward with the proof required. Plaintiff also called in rebuttal an officer named Zygello, who testified that he was near a group of Sun-Telegraph men who had congregated about five o'clock in the afternoon of July 28, 1930. A man whom he described as "one of the bosses" "went in," the witness said, "and telephoned to the Sun-Telegraph and when he came out he said, 'Connor, if you don't make an information against him, you will be fired.'" All the witness knew as to the identity of this man was that "he represented himself to be one of the bosses." Zygello's testimony obviously possesses no probative value on the pivotal issue.

Plaintiff particularly relies upon the testimony of Miss Helen Kirschman, his daughter, who testified that subsequent to the arrest of her father she was called on the telephone from the Sun-Telegraph office by Mr. Bloom, who was the circulation manager for the paper at that time. She was asked: "What did he say to you with respect to that matter that your father had at Alderman Verona's office? A. He said the suit that was started, he knows it wouldn't be heard and my Dad didn't have to appear at Verona's office. Q. Did he tell you what the suit was for that he was talking about? A. Highway robbery. Q. Did he say it was the suit that the Sun-Telegraph had started? A. Yes, he did." This last question was highly improper and if objected to it would undoubtedly have been excluded. But even this question and answer unobjected to do not constitute evidence of sufficient weight to carry the case to the jury. The question was obviously "a catch question." It assumed a fact not in evidence, to wit, that this suit had been started by the Sun-Telegraph. No such fact had been established, even assuming that the "Sun-Telegraph" and the Pitt Publishing Company are synonymous (an assumption to which the plaintiff with the burden resting upon him is not entitled). No court with due regard for justice would ever permit such an improper question, with its answer, to be used as the sole or chief support of the heavy burden resting upon plaintiff in an action of this kind. Questions of this character have always met with the condemnation of judicial tribunals. Joseph Chitty in his Practice of the Law (2d ed.), volume III, page 901, says: "It is an established rule, as regards cross-examination [and, of course, it is an even stronger rule in direct examination, as here], that a counsel has no right, even in order to detect or catch a witness in a...