Little v. Little.
Decision Date | 01 July 1949 |
Docket Number | No. A-217.,A-217. |
Parties | LITTLE v. LITTLE. |
Court | New Jersey Superior Court |
OPINION TEXT STARTS HERE
Appeal from Possaic County Court.
Action by Dorothy Little against Harry Little for malicious prosecution. From judgment for plaintiff, the defendant appeals.
Affirmed.
Before Judges JACOBS, EASTWOOD and BIGELOW.
Louis Santorf, Paterson, argued the cause for plaintiff-respondent (J. Chester Massinger, Paterson, attorney; Martin Kimmel, Paterson, on the brief).
Arthur M. Karl, Newark, argued the cause for defendant-appellant (Heyman Zimel, Paterson, attorney).
The opinion of the court was delivered by
EASTWOOD, J.A.D.
This is a malicious prosecution action. Defendant appeals from an adverse judgment entered upon the verdict of a jury at the Passaic County Court, on the ground that the court erred in submitting the case to the jury for determination.
Summarizing, the facts are: Defendant made a criminal complaint against plaintiff, without seeking legal advice, before Recorder's Court of the Township of West Milford, Passaic County, charging that she ‘* * * did set afire and cause to burn, thereby completely destroying one chicken coop owned by the complainant’. The printed form of complaint was entitled ‘Complaint Criminal Arson’. Thereafter, plaintiff was taken into custody under authority of a warrant for her arrest, issued pursuant to defendant's complaint. Subsequently, defendant appeared before the Passaic County Grand Jury, which returned an indictment charging that plaintiff did ‘unlawfully, willfully, maliciously and feloniously’ set fire to and burn ‘a certain building not a parcel of a dwelling house, to wit, a chicken coop’, property of Harry Little. When the indictment against plaintiff came on for trial, it was nolle prossed on motion of the Prosecutor of the Pleas, whereupon, plaintiff brought her suit for malicious prosecution against defendant. The ownership of the chicken coop was claimed by plaintiff and was admittedly on her property, and was being used by defendant to house his chickens. Plaintiff contended that as owner she had a right to burn it, if she chose to do so. Defendant contended that he believed he was the owner of the chicken coop and, therefore, was justified in charging plaintiff with a criminal offense when she set fire to it. The question of ownership was vigorously contested at the trial below.
Defendant concedes that in an action for malicious prosecution the plaintiff must allege and prove all of three things: ‘(1) The termination of the proceedings in his favor; (2) that the complaint was made maliciously, and (3) that it was made without probable cause.’ That prosecution of the criminal charge against plaintiff terminated favorably to her is undisputed. Therefore, if the plaintiff were entitled to prevail here, it was essential that she establish by a preponderance of the believable evidence the two other stated factors of malice and want of probable cause. The record reveals that there was conflicting testimony at the trial on both of these questions. Consequently, the court properly denied defendant's motion for a directed verdict. ‘In an action for malicious prosecution, the existence of malice in the original proceeding is always a question of fact exclusively for the determination of the jury under proper instructions, unless there is an entire lack of evidence that would warrant the jury in finding either ill with toward the plaintiff or a...
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