McClafferty v. Philp

• Decision Date: 03 October 1892
• Docket Number: 34
• Citation: 24 A. 1042,151 Pa. 86
• Parties: McClafferty v. Philp, Appellant
• Court: Pennsylvania Supreme Court

24 A. 1042

151 Pa. 86

McClafferty v. Philp, Appellant

No. 34

Supreme Court of Pennsylvania

October 3, 1892

Argued October 6, 1891

Appeal, No. 34, October T., 1891, by defendant, J. P. Philp from judgment of C.P. Venango Co., April T., 1888, No. 24, on verdict for plaintiff, Henry McClafferty.

Trespass for malicious prosecution.

The evidence on the trial before TAYLOR, P.J., was to the following effect: Plaintiff had given to defendant in part payment of purchase money of a sawmill and other property bought of Philp & Perry, a check and a note, aggregating $500, representing that he had money in the bank to meet the check and that the note would be paid at Robert's bank where he had money or would have money to meet it. Neither note nor check was paid, the plaintiff alleged, because title to part of the property was not good. Defendant consulted counsel, F. W. Hays of Oil City, and upon his advice instituted criminal prosecution for obtaining property on false pretences. Plaintiff after being arrested was discharged by a justice of the peace of Crawford county on the ground that he had no jurisdiction, the check being given in Venango county. A new prosecution was instituted in Venango county but was non-prossed, at request of counsel for prosecution, on the ground that the proper jurisdiction was Crawford county, that being the county in which the property acquired by the false representation was situated. Thereupon the present action was brought.

Defendant asked his witness, Perry: "Q. Before giving pos session what, if any, notice had you received in reference to the payment of the $500 by any one." Objected to.

The Court: Objection sustained. I cannot see how that possession there is going to affect this case.

Defendant offered to show by Mr. Perry, that he (Philp) did notify him and that in pursuance of that notice, he (the witness) gave possession. Offer overruled; exception. [8]

The court charged the jury in part as follows:

"In the issue now trying, there had been a prosecution instituted for a criminal offence before a magistrate in Crawford county, and the defendant was discharged by the magistrate on the ground of want of jurisdiction. A prosecution for the same offence was then instituted by the same prosecutor before a magistrate in this county; the defendant was arrested, gave bail for his appearance at the April Sessions, 1887; a true bill was found by the grand jury, when the cause was continued until the August Sessions, when, upon motion at the instance of the prosecutor, a nol pros was entered and the prosecution abandoned. Under such circumstances, we instruct you that the burden of proof showing probable cause is upon the defendant in this action." [3]

Plaintiff's points were as follows, among others:

"4. If the jury believe that, on the 27th of May, the payment of the five hundred dollars named in the contract was extended five days and that, in default of the payment thereof, the contract should be void and the note of two hundred dollars surrendered; and that pursuant thereto the defendants entered into the possession of the property on the 2d of June, it was a settlement of the matter and a discharge of the plaintiff's obligation to pay the first payment of five hundred dollars or any part of it, and the retention after that by the defendant of the note and check is evidence of bad faith on his part. Answer: Affirmed, unless the jury further find that the defendant had other good and valid reasons for retaining the same." [6]

"5. If the jury believe that the defendant kept the check after the settlement of May 27th with the object and intent of coercing the plaintiff to pay the money on other pretended claims and the criminal prosecutions were instituted for such purpose, they were malicious, and the check having been previously paid by the surrender of the property, pursuant to the agreement of May 27, 1886, said prosecutions were without probable cause and the plaintiff is entitled to recover." Affirmed. [7]

"6. Advice of counsel does not rebut the presumption of malice arising from want of probable cause; it is evidence merely for the consideration of the jury. To be of any avail to the defendant, the jury must be satisfied from all the evidence in the case that it was sought in good faith for an honest purpose; but if counsel was sought by defendant as a mere pretext to shield from the consequence of an unfounded prosecution, it is no protection whatever." Affirmed. [1]

Defendant's points were as follows, among others:

"If the jury find and believe, from the evidence, that the defendant, from all the facts and circumstances, had reason to believe, and did believe, that the plaintiff, by false representations, did procure the possession from the defendant of a large amount of valuable personal property, exceeding in value $3,000, and the defendant, under this belief and in good faith made the information on which the bill of indictment was found, he is not liable in damages to the plaintiff for false imprisonment or malicious prosecution, and the verdict of the jury should be for the defendant. Answer: Affirmed, if the jury further find that the facts and circumstances referred to were sufficient to warrant a cautious man in believing that the party was guilty of the offence charged." [2]

5. "The law presumes all public prosecutions for crime to be instituted in good faith and with a probable cause, and in this action the burden of proof is on the plaintiff, McClafferty, to show both want of probable cause and malice on the part of defendant, Philp, in procuring the arrest of the plaintiff. Answer: Affirmed, as qualified by the charge." [5]

7. Recited in opinion of Supreme Court. Answered in the negative as qualified by the charge. [4]

Verdict and judgment for plaintiff for $400. Defendant appealed.

Errors assigned were (1-7) instructions, quoting points, answers and charge, as above; (8) ruling on evidence, quoting bill of exception.

Judgment reversed and a venire facias de novo awarded.

Geo. S Criswell, with him J. W. Lee, Ash & Speer, for appellant. -- Want of probable cause, while evidence of malice for jury, does not establish legal malice to be declared by the court: Bernar v. Dunlap, 94 Pa. 329. Advice of counsel rebuts presumption of...